YALE 
HISTORICAL  PUBLICATIONS 

MISCELLANY 
V 

PUBLISHED   UNDER  THE   DIRECTION   OF   THE 

DEPARTMENT  or  HISTORY 

FROM  THE  INCOME  OF 

THE   FREDERICK  JOHN  KINGSBURY 
MEMORIAL  FUND 


THE  HISTORY  OF  LEGISLATIVE 

METHODS  IN  THE  PERIOD 

BEFORE  1825 


BY 


RALPH  VOLNEY  HARLOW,  PH.D. 

Instructor  in  History 
Simmons  College 


NEW  HAVEN:  YALE  UNIVERSITY  PRESS 
LONDON:   HUMPHREY  MILFORD 
OXFORD  UNIVERSITY  PRESS 

MDCCCCXVII  <2l 


3 x :; 

\  ^\ 


COPYRIGHT,  1917 
BY  YALE  UNIVERSITY  PRESS 


First  published,  October,  1917 


« 
I 


THE  FREDERICK  JOHN  KINGSBURY 
MEMORIAL  PUBLICATION  FUND 

The  present  volume  is  the  sixth  work  published  by  the 
Yale  University  Press  on  the  Frederick  John  Kingsbury 
Memorial  Publication  Fund.  This  foundation  was  estab- 
lished August  3,  1912,  by  gifts  to  Yale  University  from 
Alice  E.  and  Edith  Davies  Kingsbury,  in  memory  of 
their  father,  Frederick  John  Kingsbury,  LL.D.,  who  was 
born  in  Waterbury,  Connecticut,  January  1,  1823,  and 
died  at  Litchfield,  Connecticut,  September  30,  1910. 
Mr.  Kingsbury  was  a  graduate  of  Yale  College  in  the 
Class  of  1846,  and  an  Alumni  Fellow  of  the  Yale 
Corporation  from  1881  to  1899.  The  income  of  the 
Foundation  is  used  "to  promote  the  knowledge  of 
American  history  and  to  associate  the  name  of  Frederick 
John  Kingsbury  with  this  study  at  Yale. ' ' 


370148 


TO 
V.  B.  P. 


PREFACE 

It  is  the  purpose  of  this  work  to  trace  the  growth  of 
the  committee  systems  in  the  lawmaking  bodies  of  the 
colonies  and  states  from  about  1750  to  1790,  and  in  the 
federal  House  of  Representatives  from  the  beginning  to 
1825.  During  these  years  the  committee  form  of  organ- 
ization was  so  firmly  established  that  it  has  become  the 
distinguishing  feature  of  the  American  legislature.  In 
view  of  this  fact  it  seemed  to  be  worth  while  to  put  in 
accessible  form  the  more  important  steps  in  that  early 
development.  Matters  of  procedure  are  touched  upon 
only  in  so  far  as  they  throw  light  on  the  main  theme. 
In  the  processes  of  legislation  it  is  difficult  to  separate 
completely  the  operations  of  the  regular  committees  from 
the  activities  of  the  party  caucus,  and  the  following 
chapters  discuss  both  types  of  organization,  the  formal, 
provided  for  by  the  rules,  and  the  informal,  supplied  by 
the  political  party.  An  attempt  is  made  to  show  how  the 
colonial  legislatures  were  directed  by  party  leaders,  how 
the  caucus  and  the  executive  influenced  the  work  of  the 
federal  House,  and  also  how  certain  arrangements  made 
primarily  to  facilitate  legislation  have  affected  some  of 
the  larger  aspects  of  constitutional  history. 

This  study  was  undertaken  at  the  suggestion  of 
Professor  Allen  Johnson,  of  Yale  University,  and  the 
material  in  Chapters  I  to  VII,  inclusive,  with  the  excep- 
tion of  a  part  of  Chapter  II,  was  worked  out  in  the  form 
of  a  doctoral  dissertation  under  his  direction  in  1913. 
The  writer  is  very  glad  to  acknowledge  his  indebtedness 
to  him  for  helpful  advice  and  criticism  at  that  time. 
Those  chapters  have  subsequently  been  largely  rewritten, 


x  PEEFACE 

and  the  last  six  are  entirely  new.  The  writer  also  wishes 
to  take  this  opportunity  to  express  his  grateful  appre- 
ciation to  Professor  Charles  M.  Andrews,  of  Yale 
University,  both  for  his  suggestions  while  the  work  was 
in  progress,  and  for  reading  and  criticising  the  whole 
manuscript  before  it  went  to  press.  It  is  also  a  pleasure 
to  thank  the  officials  and  attendants  at  various  libraries, 
particularly  those  of  Yale  and  Harvard  Universities,  the 
Massachusetts  Historical  Society,  the  State  Library  of 
Massachusetts,  and  the  American  Antiquarian  Society, 
for  their  assistance  in  the  search  for  material. 

E.  V.  H. 

Boston,  Massachusetts, 
December  21, 1916. 


CONTENTS 

PAGE 

Preface ix 

Chapter         I.     Standing  Committees  in  the  Colo- 
nial Legislatures,  1750-1775  ....  1 

Chapter       II.     Party  Organization  in  the  Legis- 
lature .......         24 

Chapter     III.    The  "  Junto "  in  New  York  and 

North  Carolina     ......         49 

Chapter      IV.     Committee    Development,    1776- 

1790 61 

Chapter       V.     Committees  on  Legislation,   and 
the    Committee    on    Public    Bills    in    North 

Carolina 79 

Chapter      VI.     The    Committee    of    the    Whole 

House 92 

Chapter  VII.  Committee  Procedure  .  .  104 
Chapter  VIII.  The  First  Congress  ...  120 
Chapter  IX.  Eepublicanism  in  the  House,  1792- 

1800 148 

Chapter        X.     The  Jeffersonian  Regime  .         .       165 
Chapter      XI.    Madison  and  Congress        .         .       194 
Chapter    XII.     The  Growth  of  the  Standing  Com- 
mittee System       ......       210 

Chapter  XIII.     Committees,  Cabinet,  and  Party      237 

Bibliographical  Note 257 

Appendix;  Lists  of  Standing  Committees  .  .  259 
Index  263 


CHAPTER  I 

STANDING  COMMITTEES  IN  THE  COLONIAL 
LEGISLATURES,  1750-1775 

By  1760  a  change  little  short  of  revolutionary  had 
taken  place  in  the  colonial  assembly.  In  the  beginning, 
when  the  settlements  were  small,  it  had  apparently  been 
looked  upon  as  a  sort  of  borough  corporation,  vested 
with  authority  over  local  matters  of  secondary  impor- 
tance. In  England  it  was  still  so  regarded  at  the  time 
of  the  Revolution.  On  that  side  of  the  water  there  was 
no  appreciation  of  the  fact  that  the  growth  of  the 
assembly  had  kept  pace  with  the  increase  in  population, 
so  that  the  representatives  of  the  voters  had  formed  the 
habit  of  dealing  with  almost  every  kind  of  colonial 
problem.  This  development  had  been  fostered  by  British 
ignorance  of  or  lack  of  interest  in  American  affairs,  and 
after  several  decades  the  colonists  naturally  assumed 
that  privileges  and  powers  which  they  had  gradually 
acquired  were  theirs  by  prescriptive  right.  Certain  it 
is  that  by  the  end  of  the  Seven  Years '  War  these  Ameri- 
can assemblies  were  claiming  for  themselves  authority 
in  all  colonial  matters  corresponding  to  that  exercised 
by  the  House  of  Commons  in  England.  After  they 
obtained  control  of  colonial  finance,  they  were  able  to 
subject  the  governors  to  their  rule,  and  thus  they  made 
themselves  the  mainspring  in  the  whole  political  mechan- 
ism. That  by  cooperating  with  the  governor  they  could 
make  his  administration  an  unqualified  success,  the 
careers  of  such  men  as  Shirley  clearly  prove ;  by  oppos- 


2  DEVELOPMENT  OF  LAWMAKING 

ing  him,  they  could  completely  ruin  the  most  carefully 
prepared  executive  plans. 

This  consciousness  of  power,  derived  from  actual 
achievements  in  the  past,  made  the  assemblies  somewhat 
independent  at  best,  and  extraordinarily  obstreperous 
and  disagreeable  at  the  worst.  Members  who  won 
prominence  were  aggressive,  self-confident  politicians, 
whose  frontier  spirit  made  them  contemptuous  of  admin- 
istrators sent  over  from  England.  Between  the  points 
of  view  of  the  two  groups,  royal  officials  and  colonial 
assemblymen,  there  was  a  gulf  as  wide  as  the  ocean. 
When  differences  arose  between  them,  as  they  inevitably 
did,  the  leaders  in  the  house  soon  showed  that  they  knew 
how  to  organize  their  forces  in  the  most  effective  way 
for  the  defense  of  their  claims. 

Whatever  names  they  may  have  adopted,  House  of 
Burgesses,  House  of  Representatives,  or  Commons 
House  of  Assembly,  from  New  Hampshire  to  Georgia 
these  colonial  assemblies  were  all  very  much  alike  in 
external  features  and  general  structure.  Each  had  a 
lower  house,  representing  the  voters,  and  an  upper 
chamber  representing  British  authority,  proprietary  or 
king.  They  had  similar  officers :  speaker,  clerk,  sergeant- 
at-arms,  and  doorkeepers;  with  few  exceptions  their 
procedure  in  passing  bills  was  similar.  More  important 
still,  they  all  transacted  about  the  same  kind  of  business. 
They  kept  in  touch  with  the  agent  in  England,  super- 
vised the  treasurer  and  his  accounts,  had  general  over- 
sight of  both  raising  and  appropriating  money,  and  made 
laws  for  the  colony.  They  differed  chiefly  in  size,  and 
in  the  degree  of  complexity  of  their  internal  structure. 
The  question  of  size  is  not  particularly  important,  but 
the  types  of  organization  worked  out  in  the  various 
assemblies  are  not  unworthy  of  attention,  partly  because 
of  their  possible  influence  on  the  federal  Congress,  but 


STANDING  COMMITTEES  3 

more  especially  because  they  reveal  the  true  source  of 
legislative  strength. 

In  the  case  of  these  early  bodies,  as  in  Congress  itself, 
it  is  essential  to  remember  that  there  were  generally  to 
be  found  two  different  types  of  organization :  the  formal 
committee  system  on  the  one  hand,  and  the  party  machine 
on  the  other;  of  these,  the  latter  was  infinitely  the  more 
important. 

At  the  present  time,  the  most  obvious  and  fundamental 
difference  between  the  British  House  of  Commons  and 
the  American  House  of  Representatives  is  the  promi- 
nence of  the  standing  committee  system  in  the  latter 
body.  And  yet,  in  spite  of  this,  fact,  as  Dr.  Jameson  has 
shown,  the  standing  committee  did  not  originate  in  local 
colonial  assemblies,  but  in  the  British  House  of  Com- 
mons.1 The  institution  first  came  into  use  in  Parliament, 
near  the  close  of  the  sixteenth  century.  Its  subsequent 
decline  and  disappearance  as  an  active  factor  In  "legis- 
lative work  there  was  probably  due  to  the  rise  of  the 
Cabinet.  At  the  very  time  when  the  institution  was 
becoming  important  in  America,  it  had  practically  died 
out  in  the  House  of  Commons,  so  the  assumption  that  it 
was  of  strictly  American  origin  was  natural. 

Standing  committees  were  used  in  the  House  of  Com- 
mons as  early  as  1571;  in  that  year  a  group  of  election 
cases  was  referred  to  a  single  committee,  and  two 
others  were  also  appointed,  one  on  grievances,  and 
another  on  religion.2  In  1592  there  appeared  a  genuine 
standing  committee  of  the  modern  American  type,  on 
privileges  and  elections.  This  was  appointed  to  "exam- 
ine and  make  report  of  all  such  Cases  touching  the 

PJ  Jameson,  ' '  Origin  of  the  Standing  Committee  System, ' '  in  Pol.   Sc. 
Quarterly,  1894,  pp.  246-247. 

2  Commons  Journal,  I,  83,  April  6  and  7,  1571.  "At  the  same  time, 
another  Committee  was  nominated,  to  consider  of  those  griefs  and  Peti- 
tions .  .  ."  etc.  D'Ewes,  157,  159;  Jameson,  248. 


4  DEVELOPMENT  OF  LAWMAKING 

Elections  and  Returns  of  any  of  the  Knights,  Burgesses 
and  Barons  of  this  House,  and  also  all  such  Cases  for 
priviledge  as  in  any  wise  may  occur  or  fall  out  during 
all  the  same  sessions  of  Parliament."3  This  committee 
soon  came  to  be  a  regular  factor  in  the  organization  of 
the  House,  so  that  when  the  motion  for  its  appointment 
was  made  in  1603,  the  clerk  could  add:  "This  is  an  usual 
Motion  in  the  Beginning  of  every  Parliament. '  '*  For 
several  decades  questions  relating  to  privileges  and 
returns  were  customarily  referred  to  this  committee.5 

The  committee  on  privileges  remained  a  standing 
committee,  but  a  peculiar  custom  developed  in  the  case 
of  the  committees  on  religion  and  grievances.  Instead 
of  referring  matters  of  this  kind  to  committees  of  a  few 
members,  the  House  would  set  aside  certain  days  when 
they  might  be  taken  up  in  committee  of  the  whole.  In 
1625,  for  instance,  there  were  standing  committees  on 
privileges  and  on  religion;  then,  orders  were  given  to 
the  effect  that  on  every  Tuesday  there  should  be  a  ses- 
sion of  the  committee  of  the  whole  House  for  courts  of 
justice;  on  Wednesday  and  Friday  for  grievances,  and 
on  Thursday  for  trade.6  Three  years  later,  however,  a 

3  D  'Ewes,  471,  February  26,  1592 ;  Jameson,  251. 

*  Commons  Journal,  I,  149,  March  22,  1603. 

5  These  questions  related  to  election  returns,  contested  elections,  and  in 
general  to  all  matters  which  concerned  the  special  privileges  of  members. 
A  member's  servants  were  also  clothed  with  some  of  their  master's  dignity, 
and  any  affront  to  them  might  be  taken  up  by  the  House.  An  amusing 
instance  of  this  kind  occurred  in  1603,  and  was  actually  referred  to  the 
committee  on  privileges.  The  clerk's  dignified  account  of  the  affair  is  worth 
quoting.  ' l  Complaint  was  made  of  certain  Pages,  who,  disorderly  and 
violently,  upon  the  Parliament-stairs,  had  taken  a  Cloak  from  one  Richard 
Brocke,  a  young  Youth,  Servant  to  a  Member  of  the  House,  and  carried 
it  to  the  Sign  of  the  Sun,  a  Tavern,  in  Westminster;  and  the  Owner  follow- 
ing them,  and  demanding  his  Cloak,  they  offered  it  to  the  Vintner 's  Servant 
for  such  Wines  as  they  called  for;  and,  when  the  Beckoning  was  brought  in, 
they  left  it  in  lieu  of  Payment;  and  the  Vintner's  Man  by  Force  kept  it 
from  the  Owner."  Commons  Journal,  I,  152,  March  24,  1603. 

«  Commons  Journal,  I,  817,  818,  February  9  and  10,  1625.  These  were 
known  as  "Grand  Committees,"  while  the  regular  standing  committee  on 


STANDING  COMMITTEES  5 

day  was  appointed  for  a  grand  committee  on  religion, 
and  with  that  change  the  system  was  given  its  final  form. 
There  was  first,  a  standing  committee  on  privileges,  and 
then  there  were  the  four  grand  committees,  or  com- 
mittees of  the  whole  House,  on  religion,  courts  of 
justice,  grievances,  and  trade.7 

In  form,  this  system  Lasted  until  1832^but  it_£elLinto 
disuse  long  before  that  date.  In  the  first  session  after 
the  Reform  Bill  of  1832  went  into  effect,  the  customary 
motion  to  appoint  them  was  made  as  usual,  but  it  was 
opposed  by  some  of  the  members  on  the  ground  that 
these  grand  committees  were  "a  complete  dead  letter. " 
A  Mr.  Littleton  said  that  he  had  spent  considerable  time 
in  looking  over  the  journals,  and  he  could  discover  only 
one  instance  in  which  the  committee  on  religion  had  been 
used  since  the  Long  Parliament.  A  few  days  later  the 
discussion  was  continued,  and,  as  the  record  stands  in 
Hansard,  "The  Order  for  the  Appointment  of  the 
Standing  Committees  was  then  negatived/'  Such  was 
the  end  of  the  grand  committees,  which  had  hitherto 
been  regularly  appointed  since  1628.8 

This  committee  system  then  was  in  active  use  in 
Parliament  during  the  seventeenth  century,  the  very 
time  when  American  legislatures  were  taking  shape.  If, 
in  search  of  precedent  and  example,  the  colonists  exam- 
ined the  Journals  of  the  House  of  Commons  at  all,  they 
could  not  help  becoming  familiar  with  the  practice  of 
referring  certain  matters  to  standing  committees.  The 
conception  of  such  an  institution,  evolved  in  England 
in  the  course  of  centuries  of  parliamentary  experience, 

privileges  was  called  a  ' '  select  committee, ' '  because  it  was  composed  of  only 
a  part  of  the  members  of  the  House.  In  modern  parlance  the  term  "select 
committee"  is  applied  to  those  committees  appointed  for  a  single  piece  of 
work. 

T  Commons  Journal,  I,  873,  March  20,  1628. 

s  Parl.  Debates,  3d  Series,  Vol.  15,  especially  pp.  229-230,  627 ;  February 
6,  13,  1833. 


6  DEVELOPMENT  OF  LAWMAKING 

was  thus  placed  at  the  disposal  of  these  frontier 
legislatures  at  the  very  beginning  of  their  career. 

In  spite  of  their  common  origin,  American  legislatures 
differed  widely  in  respect  of  their  internal  structure. 
Their  committee  systems  ranged  all  the  way  from  a 
practically  exact  imitation  of  the  one  just  described, 
through  more  or  less  extensive  variations  of  it,  to  one 
having  no  trace  of  parliamentary  precedent.  There  is 
no  doubt  that  committee  development  in  both  New  York 
and  Virginia  was  directly  influenced  by  English  prac- 
tices, while  that  in  the  House  of  Bepresentatives  of 
Massachusetts  reveals  not  a  trace  of  English  influence. 
The  reason  for  this  divergence  may  be  sought,  in  part 
at  least,  in  the  nature  of  the  connection,  or  lack  of  it, 
between  the  colonies  and  England. 

It  has  been  frequently  pointed  out  that  the  relations 
between  Virginia  and  the  other  middle  and  southern 
colonies  and  England  were  much  more  intimate  than  in 
the  case  of  the  northern  colonies.  The  agricultural 
products  of  the  South  were  for  the  most  part  shipped  to 
England,  and  the  planters  always  kept  up  a  regular 
correspondence  with  their  agents  at  home.  Then,  too, 
it  was  not  unusual  for  the  aristocratic  southerners  to 
send  their  sons  to  English  universities,  where  they 
became  thoroughly  familiar  with  English  customs.  Nat- 
urally when  some  members  of  the  assemblies  had  been 
educated  in  England  they  would  be  inclined  to  follow 
British  precedents  in  legislative  affairs.  It  is  also 
reported  that  in  some  cases  the  clerks  in  the  assemblies 
were  Englishmen,  who,  because  of  experience  in  Parlia- 
ment, were  intimately  acquainted  with  procedure  in  that 
body. 

In  New  England,  on  the  other  hand,  connection  with 
the  mother  country  was  slight.  The  settlement  there  had 
been  made  primarily  to  secure  more  freedom,  and  the 


STANDING  COMMITTEES  7 

descendants  of  the  Puritan  colonists  had  never  formed 
the  habit  of  looking  to  England  for  guidance  in  any- 
thing. It  has  been  well  said  that  New  England  repre- 
sented the  very  "dissidence  of  dissent."  This  spirit  of 
separatism,  brought  out  so  clearly  in  the  difficulties  with 
Charles  the  Second  and  Sir  Edmund  Andros,  is  well 
illustrated  by  an  anecdote — which  may  or  may  not  be 
true — of  1689.  It  is  said  that  when  plans  were  being 
made  in  Boston  for  celebrating  the  accession  of  William 
and  Mary,  it  was  decided  not  to  fly  the  English  flag  in 
honor  of  the  occasion,  for  the  very  simple  reason  that 
not  a  single  one  could  be  found.  Then,  too,  trade  rela- 
tions bound  New  England  more  closely  to  the  West 
Indies  than  to  the  home  market,  so  the  economic  con- 
nection, so  prominent  in  the  South,  was  missing.  Legis- 
lators in  New  England,  therefore,  did  not  have  the 
opportunity  to  become  familiar  with  procedure  in  the 
House  of  Commons.  These  points  are  mentioned,  not 
as  adequate  explanations  of  the  differences  that  will  be 
pointed  out  in  detail  below,  but  as  material  facts  having 
more  or  less  bearing  on  the  case.  They  may  account  for 
differences  in  the  legislative  customs  of  Massachusetts 
and  Virginia,  but  they  do  not  tell  why  there  was  so  little 
trace  of  the  English  committee  system  in  South  Carolina 
before  1769. 

The  best  instance  of  deliberate  adoption  of  the  com- 
mittee system  of  Parliament  is  to  be  found  in  the  Assem- 
bly of  New  York.  At  the  beginning  of  a  new  Assembly, 
just  as  at  the  opening  of  a  new  Parliament,  days  were 
regularly  set  apart  for  the  meeting  of  "  Grand  Com- 
mittees" for  grievances,  courts  of  justice,  and  trade. 
Then  a  standing  committee  of  privileges  and  elections 
would  be  appointed,  in  accordance  with  English  prece- 
dent. The  legislature  of  New  York  may  have  considered 
itself  so  pious  that  no  grand  committee  for  religion  was 


8  DEVELOPMENT  OF  LAWMAKING 

needed,  or  so  far  beyond  hope  that  one  would  be  use- 
less; certain  it  is  that  none  was  provided  for.  The 
Assembly  had  some  sort  of  a  committee  on  laws,  regu- 
larly appointed,  but  apparently  not  a  standing  committee 
in  the  strict  sense  of  the  word.  With  these  two  excep- 
tions parliamentary  custom  was  followed  to  the  very 
letter.9 

If  the  legislators  of  New  York  kept  close  to  English 
precedent  in  form,  they  were  equally  exact  in  the  matter 
of  procedure.  By  the  middle  of  the  eighteenth  century, 
if  not  before,  the  grand  committees  in  Parliament  had 
become  1 1  a  complete  dead  letter. ' '  They  were  practically 
as  defunct  in  New  York.  Between  1750  and  1775  only 
five  different  questions  were  referred  to  the  grand  com- 
mittees :  two  to  the  committee  for  courts  of  justice,  and 
three  to  the  one  for  grievances.10  These  five  subjects 
might  just  as  well  have  been  referred  to  select  commit- 
tees, in  accordance  with  the  regular  custom.  It  is  diffi- 
cult to  see  why  the  grand  committees  should  have  been 
used  at  all.  Evidently  some  member  of  an  experimental 
turn  of  mind  wanted  to  see  whether  or  not  the  rusty  old 
machinery  could  be  made  to  move.  He  proved  that  it 
could,  because  reports  were  ultimately  submitted,  but 
the  use  of  these  committees  was  clearly  contrary  to  all 
precedents. 

An  investigation  of  the  Journal  for  the  years  1737  to 
1763  shows  that  the  grand  committees  were  not  used 
once  during  that  period.  As  a  matter  of  fact  they  made 
their  first  appearance  in  the  Assembly  in  1737,  for  the 

»  N.  Y.  Assembly  Journal,  September  4,  1750,  p.  277. 

iciZnd.,  November  23,  1763,  p.  727;  November  27,  1765,  pp.  786-787; 
February  6,  1772,  p.  42;  February  16,  1773,  p.  62;  February  3,  1774,  p.  34. 
The  grand  committee  for  trade  was  never  mentioned  after  the  day  of  its 
appointment.  No  business  was  ever  referred  to  it,  and  there  is  nothing  in 
the  Journal  to  indicate  that  it  ever  met. 


STANDING  COMMITTEES  9 

Journal  gives  no  hint  of  their  existence  before  that  date.11 
Now  the  ways  of  the  legislature  are  and  have  been  de- 
vious and  obscure,  so  that  extraordinary  actions  are  to 
be  expected,  but  their  aberrations  are  almost  always 
susceptible  of  explanation.  This  sudden  adoption  of  a 
useless,  unused,  worn-out  committee  system  was  appar- 
ently one  of  the  by-products  of  an  extremely  important 
constitutional  development,  which  affected  all  the  colo- 
nies. During  the  first  half  of  the  eighteenth  century 
the  legislatures  were  beginning  to  find  themselves,  so  to 
speak,  and  to  realize  their  own  strength.  Along  with 
this  consciousness  of  power  there  was  a  natural  desire 
to  increase  their  influence.  In  a  word,  the  American 
assemblies  began  to  feel  that  their  position  corresponded 
to  that  of  the  Parliament  in  England,  and  that  their 
authority  in  American  affairs  was  supreme.  Now  if  the 
Assembly  resembled  the  House  of  Commons  in  power, 
it  is  not  strange  that  the  members  should  desire  a  like 
resemblance  in  form.  As  one  means  of  carrying  out  the 
parallel  they  hit  upon  the  superannuated  committee  sys- 
tem, still  somewhat  imposing  from  an  ornamental  stand- 
point, and  attached  it  bodily  to  the  Assembly.  Then,  if 
their  claims  were  challenged,  they  could  point  with  pride 
to  their  legislature,  for  was  it  not  like  its  parent  even 
in  minute  details? 

This  conscious  copying  of  British  customs,  revealed 
in  the  organization  of  the  House,  was  referred  to  at  least 
once  in  the  course  of  a  debate.  In  1768,  while  discussing 
a  point  of  committee  procedure,  Colonel  Livingston 
argued  that  it  would  be  advisable  to  follow  parlia- 
mentary precedent,  because  of  "our  imitation  of  the 
practise  of  the  Commons  of  Great  Britain.  .  .  ,"12 

11  #.   Y.  Assembly  Journal,  July  23,  1728,  p.  575,  no  mention  of  the 
grand  committees;  September  1,  1737,  p.  704,  first  mention. 

12  Ibid.,  December  16,  1768,  p.  52. 


10  DEVELOPMENT  OF  LAWMAKING 

While  it  bears  just  as  unmistakably  the  marks  of  its 
origin  as  does  that  in  the  Assembly  of  New  York,  the 
committee  system  in  the  House  of  Burgesses  of  Vir- 
ginia was  the  very  opposite  of  a  dead  letter,  or  a  mere 
survival  of  the  past.  Instead  of  being  attached  to  the 
legislature  after  customs  had  become  fixed,  the  stand- 
ing committee  was  introduced  at  an  early  stage  in  its 
career.  As  the  House  itself  developed,  the  committee 
system  grew  with  it,  so  that  it  became  an  important 
factor  in  procedure.  In  New  York  the  system  might 
have  been  removed  in  1770  as  suddenly  as  it  had  been 
introduced  in  1737,  without  interfering  with  or  affecting 
in  any  way  the  work  of  the  Assembly,  but  an  aban- 
donment of  the  standing  committees  in  Virginia  would 
have  necessitated  a  radical  rearrangement  of  legislative 
methods. 

The  history  of  the  standing  committee  in  Virginia 
shows  how  an  institution  may  develop  under  the  opera- 
tion of  two  different  forces.  There  was  evidently  a  more 
or  less  conscious  attempt  to  make  the  House  of  Bur- 
gesses correspond  in  form  as  closely  as  possible  to  the 
House  of  Commons.  At  the  same  time,  the  system 
developed  gradually,  in  response  to  the  pressure  of  an 
increasing  volume  of  business.  Perhaps  it  would  be 
more  accurate  to  say  that  the  amount  of  work  made  the 
committees  necessary,  and  that  parliamentary  custom 
supplied  their  names.  By  1769  the  system  was  com- 
plete, with  six  standing  committees,  five  of  which  were 
named  after  those  in  Parliament,  while  one  was  a  local 
invention. 

As  early  as  1691  there  is  evidence  that  the  House  of 
Burgesses  considered  itself  a  House  of  Commons  in 
miniature.  In  that  year  the  colonial  agent  was  instructed 
"to  supplicate  their  majesties  to  confirm  to  Virginia  the 
authority  of  the  Gen'l  assembly  consisting  of  the  Gov- 


STANDING  COMMITTEES  11 

ernor,  Council,  and  Burgesses  as  near  as  may  be  to  the 
model  of  the  Parliament  of  England.  "13  With  that  feel- 
ing so  concretely  expressed,  it  is  not  strange  that  the 
form  of  the  colonial  assembly  began  to  resemble  that  of 
Parliament. 

The  first  three  standing  committees  in  the  House  of 
Burgesses  were  those  on  privileges  and  elections,  propo- 
sitions and  grievances,  and  public  claims,  two  of  which 
show  traces  of  an  imitation  of  parliamentary  custom. 
All  three  had  apparently  been  in  active  service  several 
years  before  1680.  The  existence  of  the  committee  on 
claims  shows  that  Virginia  already  had  a  clear  idea  of 
the  value  of  the  standing  committee,  and  that  she  had 
learned  to  adapt  the  institution  to  local  needs.  The  three 
final  additions  to  the  group,  on  courts  of  justice,  trade, 
and  religion,  for  each  of  which  there  was  precedent  in 
England,  at  first  sight  appear  to  be  cases  of  adoption  for 
the  sake  of  mere  appearances,  in  no  way  different  from 
those  in  New  York.14 

The  committee  of  public  claims,  strictly  a  colonial 
development,  had  originally  been  a  joint  committee, 
which  acted  as  the  highest  court  of  appeals  in  the  col- 
ony. After  its  judicial  work  was  taken  away  in  1680,  it 
lived  on  as  a  House  committee,  to  investigate  claims 
laid  before  the  legislature.15  In  1727  the  committee  on 
courts  of  justice  appears  to  have  been  appointed  for  the 
purpose  of  bringing  about  reforms  in  the  courts  of  the 
colony.  It  was  ordered  "to  inquire  into  the  methods  of 
proceeding  in  the  Courts  of  Justice  and  the  occasions  of 

is  Bruce,  Inst.  Hist,  of  Fa.,  II,  478,  note  1. 

i*  For  the  early  history  of  the  first  three,  see  Bruce,  Inst.  Hist,  of  Fa., 
II,  478,  485;  Miller,  Legisl.  of  Fa.,  171;  Hartwell,  Blair,  and  Chilton, 
"  Present  State  of  Va.,"  in  Mass.  Hist.  Soc.  Colls.,  1st  Series  V,  139. 

First  appointments  of  the  last  three:  Fa.  H.  of  B.  Journal,  February  10, 
1727,  p.  16;  May  7,  1742,  p.  6;  May  8,  1769,  p.  190. 

is/feid.,  February  28,  1752,  pp.  7-9;  November  4  and  5,  1762,  pp.  71,  75; 
and  Journal  for  1772,  passim. 


12  DEVELOPMENT  OF  LAWMAKING 

delaies  therein,  and  to  prepare  a  Bill  for  amending  the 
defects  of  the  Laws  now  in  force  relating  to  the  several 
Courts  of  the  Colony,  and  for  the  expediting  of  Busi- 
ness.>ne 

Why  the  committee  on  trade  should  have  been 
appointed  in  1742  is  not  so  clear,  but  the  committee  for 
religion,  created  in  1769,  was  certainly  the  outgrowth  of 
local  conditions.  In  1768  the  evangelical  activity  of  cer- 
tain dissenters  brought  about  a  sweeping  religious  re- 
vival, the  result  of  which  was  considerable  violence. 
The  Baptists  in  particular  were  regarded  as  a  disturb- 
ing social  element,  and  in  1768  a  member  of  that  denomi- 
nation was  imprisoned  because  of  his  pernicious  reli- 
gious operations.  Between  1768  and  1775  thirty  preach- 
ers and  a  few  laymen  suffered  the  same  fate.  The  Bur- 
gesses were  compelled  to  take  cognizance  of  the  ques- 
tion, and  in  order  to  deal  with  it  as  effectively  as  possi- 
ble, they  created  a  standing  committee  of  religion.17  Had 
there  been  no  precedents  in  the  House  of  Commons,  diffi- 
culties relating  to  courts  and  religion  might  have  been 
dealt  with  in  some  other  way  than  by  the  appointment  of 
committees.  But  the  Virginians  were  acquainted  with 
the  customs  of  Parliament,  and  in  solving  their  prob- 
lems they  very  naturally  made  use  of  their  knowledge 
of  English  procedure.  Thus  while  conditions  to  be 
improved  were  local,  parliamentary  usage  suggested  the 
remedy. 

By  1769,  then,  with  the  exception  of  the  committee  on 
claims,  the  list  of  standing  committees  in  Virginia  corre- 
sponded to  that  in  the  House  of  Commons.  In  England 
these  were  grand  committees  or  committees  of  the  whole 
House,  while  in  Virginia,  theoretically  at  least,  member- 
is  Va.  H.  of  B.  Journal,  February  10,  1727,  p.  16. 

17  Hid.,  May  8,  1769,  p.  190;  Eckenrode,  Separation  of  Church  and  State 
in  Va.,  36-38.  This  committee  had  not  been  appointed  "from  time  imme- 
morial," as  Mr.  Eckenrode  states  on  pp.  132-133. 


STANDING  COMMITTEES  13 

ship  was  not  so  extensive.  But  as  time  went  on,  the  sys- 
tem in  Virginia  was  made  to  resemble  that  of  the  House 
of  Commons  in  form  as  well  as  in  name.  In  some  way 
the  custom  developed  of  adding  to  those  members  origi- 
nally appointed,  until  by  the  end  of  the  session  the  com- 
mittees would  be  double  the  size  they  were  at  first.18 
That  custom  was  in  effect  an  approach  toward  the  idea  of 
the  grand  committee,  and  a  further  step  in  that  direction 
was  taken  when  the  privilege  of  voting  in  committee 
meetings  was  given  to  all  House  members  who  cared  to 
attend,  whether  they  had  been  formally  appointed  or 
not.  An  order  to  this  effect,  applying  only  to  the  com- 
mittee on  privileges  and  elections,  was  passed  in  1772, 
but  in  1776  like  permission  was  given  to  the  committees 
on  propositions  and  grievances  and  on  religion.19 

This  peculiar  custom  of  giving  all  members  a  voice  in 
the  deliberations  of  these  committees  may  have  been 
forced  upon  the  Burgesses  by  chronic  non-attendance. 
In  1775  Dinwiddie  wrote  to  Halifax  that l '  Our  Assembly 
met  the  29th  Ult'o,  but  not  above  one-half  of  them  gave 
their  Attendance/'20  It  is  impossible  to  gather  from  the 
Journal  just  how  regular  or  irregular  the  attendance 
was,  and  it  is  of  course  unsafe  to  generalize  from  a  single 
piece  of  evidence.  There  is  reason  to  believe,  however, 
that  under  ordinary  circumstances  there  were  numerous 
absentees. 

is  The  following  figures,  taken  at  random  from  two  different  sessions, 
give  an  idea  of  the  increase:  1769  1774 

First  End  of 

appointment       session        Beginning  End 

Eeligion  41  51  28  57 

Priv.  &  Elects.      .  23  31  24  40 

Props.  &  Grievs.    .  56  76  37  73 

Claims            .  24  34  '  12  36 

Courts  of  Justice  22  30  10  25 

Trade  20  30  16  22 

is  Fa.  H.  of  S.  Journal,  February  13,  1772,  p.  162;  November  6,  1776, 
p.  43. 

20  Dinwiddie  Papers,  II,  273. 


14  DEVELOPMENT  OF  LAWMAKING 

The  trend  of  committee  development  in  Virginia  sug- 
gests the  point  mentioned  above  in  discussing  the  Assem- 
bly of  New  York,  that  is,  that  as  the  legislatures  became 
more  and  more  firmly  convinced  of  their  own  importance, 
they  took  pains  to  adopt  the  organization  of  the  House 
of  Commons.  The  prevailing  political  belief  found  ex- 
pression in  the  institutional  development  within  the 
legislative  bodies. 

But  the  resemblance  of  the  standing  committees  of 
Virginia  to  those  of  New  York  and  England  was  confined 
to  name  and  form.  Instead  of  serving  as  mere  memo- 
rials of  an  ancient  custom,  they  were  vigorous,  hard- 
working groups,  actively  engaged  in  legislative  work. 
Virginia  alone  of  all  the  colonies  really  had  a  practical 
understanding  of  the  possibilities  of  an  efficient  com- 
mittee system. 

In  the  House  of  Burgesses  the  greater  part  of  the  work 
had  to  do  with  petitions  presented  to  the  assembly.  At 
that  time  few  measures  demanding  constructive  legis- 
lation came  up  in  the  course  of  a  session,  but  there  were 
always  a  thousand  and  one  local  matters  under  consid- 
eration. Much  of  this  work,  such  as  looking  up  the  truth 
of  facts  alleged  in  the  petitions,  or  investigating  condi- 
tions which  had  been  complained  of,  could  be  done  by 
committees.  Procedure  had  become  so  well  systematized 
by  1750  that  no  time  was  lost  in  putting  such  petitions 
into  the  hands  of  the  proper  committee.  All  those  of  a 
general  nature  were  customarily  referred  to  the  com- 
mittee on  propositions  and  grievances,  the  largest  and 
most  active  of  the  group.  Originally  this  committee  had 
been  appointed  to  consider  complaints  of  one  sort  and 
another  which  were  presented  to  the  assembly.21  As 
time  went,  however,  complaints  formed  only  a  small 

21  Bruce,  Inst.  Hist,  of  Va.,  II,  480-485 ;  Va.  H.  of  B.  Journal,  February 
28,  1752,  pp.  6-7. 


STANDING  COMMITTEES  15 

proportion  of  the  work  referred  to  it.  It  had  to  deal 
literally  with  all  sorts  of  petitions,  which  included  the 
most  varied  subjects.  Some  asked  for  changes  in  the 
laws  relating  to  the  shooting  of  squirrels  and  crows, 
bounties  for  killing  wolves,  holding  county  fairs,  regu- 
lation of  peddlers,  treatment  of  stray  animals,  and 
tobacco  inspection ;  others  dealt  with  questions  of  roads, 
bridges,  ferries,  and  county  boundary  lines;  still  others 
would  be  concerned  with  the  sale  of  parts  of  entailed 
estates ;  then,  men  engaged  in  doing  work  for  the  state, 
printing  the  public  papers,  or  keeping  a  lighthouse,  for 
example,  would  petition  for  an  increase  in  salary.  They 
differed  so  much  that  a  classification  of  subjects  dealt 
with  is  almost  impossible.22  In  some  sessions  as  many 
as  sixty  petitions  of  this  kind  would  be  referred  to  the 
committee  on  propositions  and  grievances  alone. 

Petitions  of  a  more  special  nature  would  be  referred 
to  other  committees.  Those  relating  to  commerce  and 
related  matters,  such  as  maintenance  of  lighthouses, 
would  go  to  the  committee  on  trade.  After  1769,  peti- 
tions relating  to  religious  questions  generally,  vestry 
troubles,  and  church  glebe  lands,  were  referred  to  the 
committee  on  religion.23  Other  petitions,  dealing  with 
contested  elections  and  related  matters,  went  to  the 
committee  on  privileges  and  elections.  These  were  con- 
cerned generally  with  charges  of  the  use  of  illegal  meth- 
ods in  attempts  to  win  an  election,  bribery  and  intimida- 
tion, for  example.24 

The  handling  of  these  petitions  necessitated  a  large 

22  The  following  references  give  an  idea  of  the  heterogeneous  nature  of 
the  petitions.     Fa.  H.  of  B.  Journal,  pp.  159,  160,  165,  168-169,  186,  190- 
191,  session  of  1772. 

23  To  the  comm.  on  trade:  Fa.  H.  of  B.  Journal,  May  7,  1742,  p.  6;  May 
25,  1770,  p.  17;  May  21,  1774,  pp.  119-120.     To  the  comm.  on  religion: 
May  8,  1769,  p.  190;  also  pp.  192,  195,  196,  216,  238,  245. 

24/fetd.,  February  28,  1752,  pp.  6,  8;  February  29,  1752,  p.  19;  March 
3,  25,  1752,  pp.  13,  57;  November  5,  1761,  p.  9;  May  17,  1777,  p.  18. 


16  DEVELOPMENT  OF  LAWMAKING 

amount  of  routine  work.  In  every  case  the  committee 
had  to  make  investigations  concerning  the  truth  of  the 
facts  alleged,  and  then  decide  whether  or  not  the  case 
was  important  enough  to  warrant  legislative  action. 
Frequently  witnesses  had  to  be  summoned,  and  the  com- 
mittee was  sometimes  kept  busy  with  the  taking  of  evi- 
dence from  one  end  of  the  session  to  the  other.  Every 
case,  no  matter  how  trivial  it  seemed,  was  given  a  fair 
hearing. 

The  history  of  the  committee  on  courts  of  justice  shows 
how  a  committee,  in  the  creation  of  which  parliamentary 
precedent  had  played  a  large  part,  could  be  adapted  to 
local  needs.  It  was  supposed  to  consider  all  matters 
relating  to  the  courts,  but  as  a  rule  few  such  questions 
came  before  the  colonial  assembly.  In  Virginia,  how- 
ever, the  committees  were  not  ornaments,  and  if  there 
was  not  enough  work  in  its  particular  line  to  keep  a  com- 
mittee busy,  duties  of  another  kind  would  be  turned  over 
to  it.  Before  1727,  the  committee  on  propositions  and 
grievances  had  been  called  upon  to  go  through  the  Jour- 
nal of  the  preceding  session,  and  to  make  up  and  lay 
before  the  House  a  list  of  all  unfinished  business.  At  the 
same  time  it  also  made  out  a  list  of  temporary  laws  that 
had  expired  and  were  in  need  of  renewal.  This  work  was 
finally  transferred  to  the  committee  on  courts  of  jus- 
tice, because  its  regular  duties  were  light.25 

Work  on  petitions  was  not,  however,  the  unique  fea- 
ture of  the  standing  committee  system  in  Virginia.  To 
a  certain  extent  similar  work  was  done  in  the  same  way 
in  some  of  the  other  colonies.  But  the  House  of  Bur- 
gesses was  the  only  assembly  which  permitted  its  stand- 
ing committees  to  frame  and  amend  bills.  To-day  the 

25  Va.  H.  of  B.  Journal,  February  28,  1752,  pp.  7,  8;  November  5,  1762, 
pp.  72-73;  November  11,  1769,  pp.  248-250. 

This  practice  of  course  prevented  the  smothering  of  business  in  com- 
mittee. 


STANDING  COMMITTEES  17 

most  important  function  of  the  regular  committees  is  to 
put  measures  in  shape  for  their  passage  through  the 
legislature,  and  the  very  idea  of  a  standing  committee 
system  which  had  no  connection  with  work  of  that  kind 
seems  absurd.  In  all  colonial  assemblies  bills  were 
drafted  by  select  committees,  and  sometimes  amend- 
ments would  be  made  in  the  same  way.  But  the  use  of 
the  standing  committees  as  parts  of  the  actual  law- 
making  machinery  was  peculiar  to  Virginia.26 

Although  the  committee  system  of  Virginia  was  not 
typical,  but  unique,  as  regards  both  the  nature  of  work 
done,  and  the  number  of  standing  committees,  it  serves 
nevertheless  as  an  excellent  standard  by  which  the  others 
may  be  judged.  While  no  colonial  assembly  had  as  many 
standing  committees,  most  of  them  had  one  or  two.  All 
of  the  colonies  from  New  York  to  Georgia,  with  the  pos- 
sible exception  of  Delaware,  had  some  sort  of  a  com- 
mittee on  grievances.  In  New  York  and  New  Jersey  it 
was  a  grand  committee,  but  elsewhere  it  was  standing. 
In  fact,  there  was  little  variation  in  form,  and,  except  in 
Maryland,  where  it  was  called  the  committee  on  griev- 
ances and  courts  of  justice,  and  in  North  Carolina  and 
Georgia,  where  it  had  the  Virginia  name,  propositions 
and  grievances,  there  was  no  difference  in  name.  It  was 
in  brief  a  committee  either  to  consider  complaints  pre- 
sented to  the  assembly,  or  to  formulate  the  complaints 
of  the  colony  itself.27 

28  The  following  references  are  examples,  not  isolated  cases,  of  this 
practice.  Fa.  H.  of  B.  Journal  for  1766,  pp.  25,  33,  35,  38,  40,  46,  50,  64; 
for  1767,  pp.  144-146;  for  1770,  pp.  13,  40;  1772,  pp.  176-178. 

27  N.  Y.  Assembly  Journal,  September  4,  1750,  p.  277;  November  23, 
1763,  p.  727;  February  16,  1773,  p.  62. 

N.  J.  H.  Journal,  September  10,  1776,  p.  7. 

Pa.  H.  Journal,  October  16,  1758,  p.  1;  November  16,  pp.  4,  5;  June  2, 
1759,  p.  55;  February  28,  1759,  p.  22;  January  22,  1767,  p.  512;  Franklin, 
Works,  II,  485-493. 

Md.  H.  Journal,  November  5,  1765,  p.  17. 

N.  C.  Col  Eecs.,  V,  240,  December  12,  1754;  V,  297-300,  January  9,  1755. 


18  DEVELOPMENT  OF  LAWMAKING 

Another  standing  committee,  found  in  nearly  all  the 
middle  and  southern  colonies,  was  that  on  privileges  and 
elections.  This  differed  little  in  the  various  assemblies, 
and  a  description  of  the  work  done  by  the  committee  in 
Virginia  would  apply  equally  well  to  them  all.28 

In  addition  to  the  committees  named  above,  there  were 
a  few  standing  committees  that  deserve  mention.  In 
North  Carolina  there  was  a  joint  committee  on  claims, 
similar  to  the  one  in  Virginia,  and  another  on  accounts, 
the  duty  of  which  was  to  examine  and  audit  all  public 
accounts,  such  as  those  of  tax  collectors,  military  officers, 
and  the  state  treasurers.29  Then,  long  before  the  revo- 
lutionary committee  of  correspondence  appeared,  several 
colonies  had  committees  of  that  name,  the  duties  of  which 
were  to  keep  in  touch  with  the  colonial  agents  in  Eng- 
land. In  some  cases  they  were  regular  standing  com- 
mittees, but  in  others  they  were  named  by  statute,  so 
that  they  were,  strictly  speaking,  boards  or  commissions 
rather  than  legislative  committees.30 

S.  C.  H.  Journal,  June  26,  1769,  p.  11.  In  South  Carolina  the  committee 
was  not  created  until  after  the  Kevolutionary  agitation  became  serious, 
and  it  was  probably  an  outgrowth  of  that  movement. 

Ga.  Col.  Eecs.,  XIII,  13,  January,  1755. 

282V".  T.  Assembly  Journal,  September  4,  1750,  p.  277;  Md.  H.  Journal, 
November  5,  1765,  p.  17;  N.  C.  Col.  Bees.,  VI,  364;  Ga.  Col.  Eecs.,  XIII, 
13,  January  8,  1755.  8.  C.  House  Journal,  October  13,  1760,  p.  12. 

In  South  Carolina  the  only  standing  committees  were  those  on  privileges 
and  elections,  and  on  grievances;  the  latter  was  not  created  until  June  26, 
1769.  S.  C.  E.  Journal,  p.  11.  The  following  statement  is  made  by 
W.  Eoy  Smith,  in  South  Carolina  as  a  Royal  Province,  p.  11:  "  Standing 
committees  on  religion,  privileges  and  elections,  grievances,  trade,  and  courts 
of  justice  were  appointed.  .  .  ."  The  Journal  of  the  House  contains  no 
record  of  any  such  appointments,  and  the  writer  quoted  gives  no  authority 
for  his  statement.  The  only  colonial  assembly  having  such  a  complete  list 
was  the  House  of  Burgesses  of  Virginia.  It  is  not  ordinarily  regarded  as 
a  safe  practice  to  draw  upon  the  journal  of  one  legislature  for  information 
regarding  procedure  in  another. 

29  N.  C.  Col.  Eecs.,  V,  239,  307,  965-975. 

3Q2V.  T.  Assembly  Journal,  July  5,  1755,  p.  452;  Pa.  H.  Journal,  October 
16,  1758,  p.  1;  Md.  H.  Journal,  December  20,  1765,  pp.  84-85,  appointed 
for  the  recess  only;  Va.  H.  of  B.  Journal,  November  8,  1762,  p.  99,  named 
by  statute;  N.  C.  Col.  Eecs.,  VI,  429;  Ga.  Col.  Eecs.,  XIV,  10. 


STANDING  COMMITTEES  19 

The  assemblies  of  these  middle  and  southern  colonies 
formed  a  group,  the  standing  committees  in  which  all 
bore  clearly  marked  traces  of  their  parliamentary  origin. 
The  New  England  colonies,  on  the  other  hand,  formed 
a  wholly  distinct  group,  in  which  the  organization  of  the 
assemblies  did  not  resemble  that  of  the  House  of  Com- 
mons. In  New  Hampshire,  Ehode  Island,  and  Connecti- 
cut there  were  no  standing  committees  at  all  before  the 
Revolution,  and  those  that  flourished  for  a  time  in 
Massachusetts  were  of  local  origin. 

By  1759,  the  House  of  Representatives  of  Massachu- 
setts was  on  a  par  with  the  House  of  Burgesses,  so  far 
as  size  and  amount  of  business  were  concerned.  The 
legislature  of  Virginia,  however,  had  developed  a  more 
finished  method  of  transacting  business.  As  was  the 
case  in  many  other  assemblies,  the  greater  part  of  the 
work  was  concerned  with  petitions.  In  the  first  session 
of  the  new  House,  in  1759,  a  little  over  two  weeks  in 
length,  fifty-nine  petitions  were  introduced,  all  of  which, 
if  granted,  required  a  special  vote  of  the  General  Court, 
to  cover  cases  not  specifically  provided  for  by  law.  In 
the  course  of  the  four  sessions  from  May,  1761,  to  May, 
1762,  over  a  hundred  and  seventy  petitions  were  pre- 
sented. These  covered  the  widest  range  of  subjects. 
Men  asked  the  legislature  for  authorization  to  dispose 
of  the  land  of  their  insane  relatives,  for  permission 
to  start  lotteries — this  in  Puritan  Massachusetts — to 
change  their  place  of  worship,  to  alter  boundary  lines, 
and  to  fish  for  alewives  in  seines, — in  short,  they  peti- 
tioned for  anything  they  wanted,  and  their  wants  were 
both  varied  and  curious.  Instead  of  relying  upon  stand- 
ing committees  to  perform  the  routine  work  in  connection 
with  this  heterogeneous  mass  of  business,  the  House  of 
Representatives  turned  it  all  over  to  separate  select 
committees.  This  method  did  not  insure  any  greater 


20  DEVELOPMENT  OF  LAWMAKING 

care  in  the  handling  of  these  documents  than  did  the  Vir- 
ginia plan,  and  it  was  surely  unbusinesslike  and  wasteful. 
Apparently  with  a  growing  realization  of  this  fact  the 
House,  in  1760,  appointed  a  standing  committee  to  deal 
with  petitions  of  sick  and  wounded  soldiers.31  In  1762, 
seven  different  standing  committees  were  appointed, 
each  of  which  was  expected  to  handle  petitions  relating 
to  a  certain  definite  subject.  These  committees  were 
brought  into  existence,  not  for  the  purpose  of  imitating 
parliamentary  precedent,  but  to  enable  the  House  to 
transact  its  business  more  expeditiously,  and  their 
names  bear  evidence  of  their  local  origin.  They  were 
appointed  to  consider  petitions  of  sick  and  wounded 
soldiers,  of  those  captured  in  the  war,  of  men  who  had 
lost  their  guns,  and  of  those  who  for  some  reason  had 
failed  to  get  their  wages;  the  other  three  were  to  deal 
with  petitions  regarding  the  sale  of  lands,  rehearings  of 
lawsuits,  and  requests  for  pensions.32  The  following 
year  the  committee  on  petitions  of  soldiers  who  were 
deprived  of  their  wages  was  not  reappointed,  and  in 
1763  two  more  were  dropped.  From  1765  to  1767  none 
at  all  were  appointed,  and  from  1767  to  1774  there  was 
only  one,  on  petitions  regarding  the  sale  of  land.33  As 
the  revolutionary  movement  increased  in  violence,  busi- 
ness of  a  general  nature  received  scant  attention  in  the 
House,  and  standing  committees  on  petitions  were  no 
longer  needed.  Then,  too,  the  standing  committees  had 
been  appointed  to  deal  with  questions  growing  out  of 
the  war,  and  when  it  was  over  petitions  on  those  particu- 
lar subjects  ceased  to  be  burdensome.  This  rise  of 
standing  committees  is  interesting,  because  they  were 
clearly  a  local  development.  Large  amounts  of  work 

si  Mass.  H.  Journal,  June  2,  1760,  p.  16. 
32  Ibid.,  May  29,  June  2,  1761,  pp.  9,  20. 

MlMd.,  May  28,  June  1,  1762,  pp.  13,  27  j  May  26,  1763,  p.  11;  June  1, 
1764,  p.  12;  May  28,  1767,  p.  9. 


STANDING  COMMITTEES  21 

would  have  forced  the  legislatures  to  adopt  the  system 
eventually,  even  though  there  had  been  no  precedents 
for  them  in  Parliament. 

Aside  from  these  in  Massachusetts,  and  the  revolu- 
tionary committees  of  correspondence  after  1772,  there 
were  no  other  standing  committees  in  New  England. 
The  so-called  committees  of  war  which  appeared  in  the 
northern  colonies  during  the  Seven  Years '  War  were  not 
legislative  committees  at  all,  but  administrative  boards 
appointed  by  the  assemblies.  In  New  Hampshire  they 
were  named  in  the  military  appropriation  acts.  When 
the  assembly  voted  money  for  the  war,  it  would  name 
at  the  same  time  a  committee  of  its  own  members  to 
superintend  the  expenditure  of  those  funds.  The 
"  Committee  of  Warr"  appointed  in  Rhode  Mand  in 
1758  contained  no  members  of  the  House  at  all.34 

Besides  the  standing  committees,  certain  select  com- 
mittees were  regularly  appointed  in  all  the  colonies  each 
term,  and  were  therefore  a  part  of  the  committee 
systems.  The  most  common  were  those  to  reply  to  the 
governor's  speech,  to  audit  the  public  accounts,  and  to 
report  on  temporary  laws  which  needed  to  be  renewed. 
Thus  the  regular  recurrence  of  certain  definite  work  gave 
rise  to  a  committee  to  attend  to  it. 

All  the  colonial  assemblies  appointed  numerous  select 
committees  in  the  course  of  a  session.  Whenever  the 
House  wanted  more  light  on  any  subject,  which  did  not 
lie  within  the  field  of  any  of  the  standing  committees,  a 
small  committee  would  be  appointed  to  deal  with  the 
matter. 

Except  in  the  House  of  Burgesses,  bills  were  always 
drafted  by  select  committees.  It  was  not  the  custom 
then  for  an  individual  member  to  lay  bills  before  the 
House  on  his  own  responsibility.  He  might  move  that 

a*  N.  H.  Prov.  Papers,  VI,  369 ;  B.  I.  H.  Journal,  May  6,  1758. 


22  DEVELOPMENT  OF  LAWMAKING 

a  bill  be  brought  in,  or  he  might  ask  permission  to  intro- 
duce a  measure,  but  in  every  case  a  select  committee 
would  be  appointed  to  prepare  the  draft.35 

If  the  primary  object  of  this  comparative  study  of  the 
standing  committee  in  colonial  assemblies  were  the 
discovery  of  precedents  bearing  on  Congressional  pro- 
cedure, the  results  would  indeed  be  disappointing.  It 
is  evident  that  the  records  of  the  House  of  Burgesses 
alone  contain  material  of  value  on  that  point.  With  the 
possible  exception  of  that  in  North  Carolina,  the  other 
legislatures  might  be  ignored.  To  be  sure  assemblymen 
in  other  colonies  knew  what  the  standing  committee  was, 
but  their  own  experience  would  convince  them  that  it 
was  an  unnecessary  factor  in  lawmaking.  Certain  it 
is  that  outside  of  Virginia  the  standing  committee  was 
anything  but  the  distinguishing  characteristic  of  the 
American  legislature. 

But  in  some  cases  negative  results  are  by  no  means 
valueless.  It  is  evident  that  the  standing  committee 
reveals  very  little  of  the  real  forces  at  work  in  the  com- 
plex process  of  legislation,  and  consequently  it  cannot 
be  the  proper  avenue  of  approach.  If  that  is  the  case, 
what  was  the  important  element  in  legislative  organi- 
zation? Legislatures  as  such  do  not  run  themselves. 
There  is  always  an  inner  circle,  such  as  the  Cabinet  in 
England,  the  late  committee  on  rules  in  Congress,  or 
the  caucus.  For  light  on  this  prime  factor  in  legislative 
processes,  recourse  must  be  had,  not  to  the  official 
records,  because  they  are  always  silent  on  the  most 

ss  For  examples  see:  N.  H.  Prov.  Papers,  VI,  540,  VII,  147;  Mass.  H. 
Journal,  June  1,  1759,  p.  11;  E.  I.  H.  Journal,  June  15,  1764;  N.  Y. 
H.  Journal,  September  5,  1750,  p.  277;  Pa.  H.  Journal,  November  24, 
1758,  p.  7;  Md.  H.  Journal,  November  6,  1765,  p.  18;  Va.  H.  of  B.  Journal, 
November  14,  1753,  p.  122;  N.  C.  Col  Eecs.,  IV,  819,  VII,  929;  8.  C.  H. 
Journal,  May  19,  1760,  p.  196;  Ga.  Col.  Eecs.,  XIII,  27. 


STANDING  COMMITTEES  23 

interesting  aspects  of  their  subject,  but  to  the  annals  of 
the  political  party.  It  is  only  by  combining  the  accounts 
of  the  two  types  of  organization,  formal  and  informal, 
that  an  adequate  conception  of  the  legislature  as  it  was 
can  be  formed. 


CHAPTER  II 
PAETY  ORGANIZATION  IN  THE  LEGISLATURE 

The  legislature  itself,  with  its  formal  committee 
system,  is  the  instrument  by  means  of  which  policies  and 
principles  are  hammered  into  statutes ;  it  is  in  no  sense 
the  agent  which  decides  upon  the  advisability  of  pro- 
posing or  making  new  laws.  Hamilton's  famous  financial 
projects,  for  example,  were  ratified  by  Congress,  but 
they  were  drawn  up  and  virtually  passed  by  the  presiding 
genius  in  the  Treasury  department.  No  one  dreams  of 
finding  the  true  history  of  the  Assumption  Act  in  either 
the  Journal  or  the  Annals  of  Congress;  the  really 
interesting  episodes  in  the  passing  of  that  piece  of 
legislation  are  recorded  in  the  letters  or  diaries  of  a  few 
men  who  knew — or  thought  they  knew — just  how  the  plan 
became  a  law.  It  is  to  the  party  organization,  the 
"  Junto,"  as  the  colonists  called  it,  which  is  at  the  same 
time  within  and  above  the  legislature,  that  one  looks  for 
the  tangible  results  of  a  session.  Such  being  the  case, 
the  most  important  standing  committee  in  the  legislature 
is  the  one  which  receives  no  regular  appointment,  and 
which  has  no  official  existence,  namely,  the  group  of  party 
leaders. 

Indispensable  as  they  are,  the  activities  of  these  boards 
of  directors  are  rarely  brought  out  into  the  full  light  of 
publicity.  The  significant  operations  in  lawmaking  are 
most  frequently  the  subterranean  ones,  concerning  which 
little  evidence  exists.  It  is  always  hard  to  find  out  just 
what  the  organization  has  contributed  in  any  particular 
case,  and  it  is  even  more  difficult  to  discover  its  mode  of 


PAETY  ORGANIZATION  25 

working.  There  are,  however,  enough  bits  of  information 
available  to  make  it  worth  while  to  attempt  a  study  of 
these  irregular  committees,  and  the  account  need  not 
be  as  impressionistic  as  the  elusive  nature  of  the  subject 
might  lead  one  to  believe. 

In  Massachusetts  after  1766,  and  to  a  certain  extent 
before,  the  political  destinies  of  the  House  of  Repre- 
sentatives were  watched  over  by  a  powerful  little  group 
of  members,  the  leaders  of  which  were  the  Boston  dele- 
gation and  their  friends.  The  names  which  stand  out 
most  conspicuously  are  Samuel  Adams,  Thomas  Gushing, 
James  Otis,  and  John  Hancock  of  Boston,  Hawley  of 
Northampton,  Sheaffe  of  Charlestown,  together  with 
Bowers,  Dexter,  and  Partridge.  Of  this  aggregation  the 
chieftain  was  Adams,  a  man  who  should  hold  a  position 
in  the  front  rank  of  American  political  strategists. 

When  the  new  House  organized  for  business  on  May 
28,  1766,  James  Otis  was  elected  Speaker,  while  Adams 
himself  was  made  clerk.  The  thought  of  the  hot-tempered 
Otis  as  presiding  officer,  however,  was  too  much  for 
Governor  Bernard.  By  virtue  of  an  undoubted,  though 
seldom  used  authority,  he  refused  to  approve  the  choice 
of  the  House.  Thereupon  Thomas  Gushing  was  named, 
and  although  he  was  a  member  of  the  party  opposed  to 
the  governor,  Bernard  made  the  best  of  a  bad  matter  and 
accepted  him.1 

Henceforth  until  the  Revolution  the  business  of  the 
House  was  transacted  by  this  Boston  "  Junto. "  There 
were  no  standing  committees  of  importance  after  1766, 
but  select  committees  were  extensively  used.  They 
drafted  the  various  measures,  resolutions,  and  laws 
passed  by  the  House,  and  naturally  their  membership 
would  be  carefully  arranged  by  the  leaders  in  charge. 
On  these  committees  the  same  names,  those  of  the  four 

i  Mass.  H.  Journal,  May  28,  1766,  pp.  4-5. 


26  DEVELOPMENT  OF  LAWMAKING 

Bostonians  and  their  trusted  lieutenants,  recur  again  and 
again,  so  often  that  mere  accident  could  not  account  for 
their  repetition.  In  a  general  statement  it  is  difficult 
to  convey  an  adequate  idea  of  the  completeness  and 
comprehensiveness  of  their  control.  On  every  important 
committee  they  had  a  decisive  majority.  All  matters 
pertaining  to  relations  with  the  governor,  the  British 
government,  or  the  colonial  agent  in  England  in  par- 
ticular, and  in  fact  all  general  questions  bearing  on  the 
heated  political  controversy  were  referred  to  the  same 
men.  Other  names  might  appear  from  time  to  time,  but 
never  in  sufficient  numbers  to  change  the  complexion  of 
the  committees  themselves.  Thus  even  the  Journal 
of  the  House  bears  witness  to  the  importance  of  this 
particular  party  organization.2 

This  unofficial  standing  committee,  for  such  it  really 
was,  was  sometimes  formally  vested  with  authority  to 
look  after  the  interests  of  the  province  during  recesses 
between  the  regular  sessions.  For  instance,  on  February 
20,  1766,  just  before  the  close  of  the  session,  a  committee 
consisting  of  Lee  of  Cambridge,  Gushing,  Gray,  and 
Samuel  Adams  of  Boston,  and  Sheaffe  of  Charlestown, 
all  prominent  Whigs,  as  the  opponents  of  the  governor 
were  styled,  was  appointed  to  take  into  consideration 
"the  difficulties  and  discouragements  as  well  with 
respect  to  trade,  as  the  internal  policy  of  the  province, " 
and  to  report  at  the  next  session.3  In  December  of 
the  same  year  a  similar  committee  was  appointed.4 
"Internal  affairs"  of  the  province  were  ordinarily 
attended  to  by  the  governor  and  council  during  a  recess. 
By  making  these  appointments  the  House,  or  rather  the 
Whig  party,  was  guilty  of  a  direct  attack  upon  executive 
authority. 

2  See  note  at  end  of  this  chapter  for  a  list  of  some  of  these  committees, 
s  Mass.  H.  Journal,  February  20,  1766,  p.  300 ;  italics  mine. 
*  Ibid.,  December  8,  1766,  p.  217. 


PARTY  ORGANIZATION  27 

The  one  striking  exception  to  these  general  statements 
regarding  the  personnel  of  committees  on  important 
subjects  serves  as  further  proof,  if  any  is  needed,  of  the 
absolute  power  of  the  "Junto."  In  1766  the  governor 
was  constantly  urging  the  legislature  to  make  an  effort  to 
discover  those  responsible  for  the  riots  over  the  Stamp 
Act  of  the  preceding  year.  Bernard  offered  to  lend  all 
the  assistance  he  could  to  help  in  the  work.  There  is 
little  doubt  that  Adams  and  Otis  knew  practically  all 
there  was  to  be  known  about  those  disturbances  and 
those  responsible  for  them,  and  any  honest  investigation 
would  surely  have  implicated  them.  They,  however,  or 
at  least  the  House,  agreed  to  cooperate  with  the  governor, 
and  a  committee  was  appointed  to  collect  data.  The  five 
men  named  were  directed  to  sit  during  the  recess,  and 
to  gather  information  that  might  assist  in  the  discovery, 
"as  far  as  may  be,"  of  the  guilty  ones.  The  outbreaks 
had  taken  place  chiefly  in  Boston  and  the  neighboring 
towns,  but  instead  of  appointing  members  from  those 
districts  to  the  committee,  the  House  appointed  five  men 
from  the  country,  who,  so  far  as  the  records  show,  had 
never  served  on  a  committee  before,  and  who  had  taken 
no  active  part  in  the  work  of  the  House.  Thus  the 
appointees  were  men  who  had  no  actual  knowledge  of 
the  situation,  and  who  stood  little  chance  of  discovering 
the  real  facts.  In  due  time  this  joker  committee  reported, 
but  its  findings  revealed  nothing  except  an  apparent 
desire  to  avoid  probing  too  deeply.5  The  subject  itself 
was  important  enough,  but  those  who  ordinarily  took 
charge  of  such  matters  did  not  care  to  conduct  an 
investigation  into  operations  with  which  they  had  been 
too  intimately  connected.  They  could  effectively  smother 
the  whole  thing  by  making  it  impossible  for  the  com- 

5  Mass.  H.  Journal,  June  28,  October  30,  1766,  pp.  142,  153-156. 


28  DEVELOPMENT  OF  LAWMAKING 

mittee  to  get  in  touch  with  the  facts.6  Thus  the  record 
of  committee  appointments  proves  that  the  business  of 
the  House  of  Eepresentatives,  if  not  of  the  whole  legis- 
lature, was  effectively  guided  and  controlled  by  the 
delegation  from  Boston.  If  they  wanted  action,  they 
took  it;  if  they  wished  to  avoid  it,  they  made  arrange- 
ments accordingly. 

A  detailed  analysis  of  the  operations  of  this  group 
would  lay  bare  the  very  lively  history  of  pre- 
revolutionary  politics  in  Massachusetts,  for  the  Boston 
"Junto"  was  more  important  than  a  mere  legislative 
committee.  It  was  the  centre  from  which  revolutionary 
propaganda  was  carried  into  every  part  of  the  province. 
Interesting  as  it  would  be  to  trace  out  the  relationship 
between  such  little-known  societies  as  the  Sons  of 
Liberty,  for  example,  and  the  leaders  in  the  House  of 
Eepresentatives,  a  study  of  that  kind  would  be  only 
remotely  connected  with  the  development  of  legislative 
organization.  There  were  however  certain  important 
steps  taken  within  the  General  Court  which  serve  to 
illustrate  the  career  of  the  "Junto"  as  a  part  of  law- 
making  machinery. 

In  the  first  place,  the  hand  of  the  "Junto"  is  plainly  to 
be  seen  in  the  election  of  councillors  for  1766,  and  the 
years  following.  In  Massachusetts  the  upper  house  was 
chosen  by  the  lower,  at  the  opening  of  each  new  General 
Court.  Up  to  and  including  1765  the  conservative  party, 
led  by  Thomas  Hutchinson,  had  retained  control  of  the 
Council.  Even  Andrew  Oliver,  who  had  achieved  the 
unenviable  distinction  of  being  appointed  distributor 
of  stamps,  was  reflected  in  1765,  although  by  an  ex- 
tremely narrow  margin.  In  the  next  election,  thanks  to 

6  The  General  Court  subsequently  passed  an  act  to  indemnify  those 
whose  property  had  been  destroyed,  and  to  exempt  from  prosecution  those 
who  had  been  concerned  in  the  riots. 


PAETY  ORGANIZATION  29 

an  energetic  newspaper  campaign,  apparently  directed 
by  Samuel  Adams,7  the  presiding  genius  of  the  Boston 
faction,  the  Whigs  secured  an  overwhelming  majority 
in  the  House  of  Representatives.  The  fate  of  the 
Council  was  s-ealed  by  this  election.  The  temper  of  the 
House,  manifested  in  its  organization,  already  referred 
to,  was  even  more  clearly  set  forth  in  the  choice  of 
councillors.  Hutchinson,  Oliver,  and  two  other  con- 
servatives who  had  been  instrumental  in  defeating  the 
radical  program  of  the  House  during  the  agitation  over 
the  Stamp  Act,  failed  of  reelection.  A  fifth  had  already 
resigned  in  anticipation  of  the  result.  For  the  five 
vacant  places,  prominent  Whigs  were  chosen.  Although 
he  was  powerless  to  prevent  the  exclusion  of  his  friends, 
Governor  Bernard  could  at  least  have  a  negative  voice 
in  the  selection  of  their  successors.  He  promptly  re- 
jected the  five  Whigs,  and  for  good  measure  he  also 
threw  out  James  Otis,  Senior,  who  had  been  in  the 
Council  since  1763.8  The  House  in  turn  refused  to  name 
any  others,  so  the  Council  was  left  with  only  twenty-two 
members,  instead  of  the  customary  twenty-eight.  But 
the  Whigs  had  carried  their  point,  for  the  elimination 
of  the  five  conservatives  had  given  them  a  safe  majority. 
Henceforth  until  the  Revolution,  with  the  exception  of 
one  year,  the  membership  of  the  Board  was  never  com- 
plete. The  effect  of  the  election  on  the  Council  was 
described  by  Hutchinson  himself  as  follows:  "In  most 
of  the  addresses,  votes,  and  other  proceedings  in  council, 
of  importance,  for  several  years  past,  the  lieutenant- 

7  Boston  Evening  Post,  April  28,  May  5,  1766. 

&Mass.  H.  Journal,  May  28,  29,  1766,  pp.  7,  8,  10.  This  exclusion 
of  Hutchinson  and  his  friends  was  the  outcome  of  a  party  quarrel  dating 
back  to  1760.  The  Whig  leaders  had  tried  to  oust  them  before,  but  they 
had  failed  each  year  until  this.  Boston  Gazette,  April  26,  1762;  Minot, 
II,  111.  Public  opinion  would  not  tolerate  their  removal  until  after  the 
disturbances  over  the  Stamp  Act. 


30  DEVELOPMENT  OF  LAWMAKING 

governor  (Hutchinson)  had  been  employed  as  chairman 
of  the  committees.  Mr.  Bowdoin  succeeded  him,  and 
obtained  a  greater  influence  over  the  council  than  his 
predecessor  ever  had ;  and,  being  united  in  principle  with 
the  leading  men  in  the  house,  measures  were  concerted 
between  him  and  them;  and  from  this  time  the  council, 
in  matters  which  concerned  the  controversy  between  the 
parliament  and  the  colonies,  in  scarcely  any  instance, 
disagreed  with  the  house."9 

From  1766  on  the  work  of  the  House  of  Eepresenta- 
tives  bears  witness  to  the  extent  of  the  influence  enjoyed 
by  Samuel  Adams  and  his  corps  of  assistants.  For  one 
thing  the  various  resolutions  of  the  legislature  can  often 
be  traced  back  to  him,  through  the  Boston  town  meeting 
and  the  town  caucus.  It  so  happened  that  many  matters 
of  business  which  subsequently  came  before  the  House 
first  appeared  in  the  form  of  instructions,  issued  by  the 
metropolis  for  the  guidance  of  its  representatives.  Now 
the  political  fortunes  of  the  town  were  never  left  to  blind 
chance;  instead  they  were  carefully  fostered  by  the 
famous  Caucus  Club,  described  by  John  Adams,  the 
cousin  of  Samuel.  This  organization  *  had  all  the  char- 
acteristics of  a  modern  machine.  "This  day,"  wrote 
Adams,  "learned  that  the  Caucus  club  meets  at  certain 
times  in  the  garret  of  Tom  Dawes,  the  adjutant  of  the 
Boston  regiment.  He  has  a  large  house  and  he  has  a 
movable  partition  in  the  garret  which  he  takes  down  and 
the  whole  club  meets  in  one  room.  There  they  smoke 
tobacco  until  you  cannot  see  from  one  end  of  the  garret 
to  the  other.  There  they  drink  flip,  I  suppose,  and  they 
choose  a  moderator  who  puts  questions  to  vote  regu- 
larly; and  selectmen,  assessors,  collectors,  fire-wards, 
and  representatives  are  regularly  chosen  before  they  are 
chosen  in  the  town."  In  the  list  of  names  of  those 

»  Hutchinson,  Hist,  of  Mass.,  Ill,  156. 


PARTY  ORGANIZATION  31 

present,  that  of  Samuel  Adams  of  course  appears.10  If 
this  club  was  influential  enough  to  choose  both  town 
officers  and  representatives,  the  assumption  is  reasonable 
that  it  was  also  responsible  for  the  pronunciamentos 
issued  by  the  town  meeting.  As  a  matter  of  fact,  the 
three  units  referred  to,  caucus,  town  meeting,  and  House 
of  Representatives,  were  all  linked  together  in  the 
person  of  Samuel  Adams.11  Such  being  the  case,  instead 
of  being  bona  fide  instructions  from  constituents  to 
representatives,  these  publications  of  the  town  were 
nothing  but  the  declaration  of  the  policies  of  the  leaders. 

Measures  recommended  by  a  machine-controlled  town 
meeting  were  consistently  ratified  by  the  House  of 
Representatives,  directed  by  the  same  power.  The 
instructions  of  May  26,  1766,  may  be  taken  as  a  fair 
example.  On  that  date  the  town  drew  up  its  orders  for 
its  representatives,  and  they  were  strictly  enjoined  to 
regulate  their  conduct  in  accordance  with  them.12  In  the 
first  place  the  town  urged  them  to  prevent  the  use  of 
public  funds  contrary  to  the  wishes  of  the  House  of 
Representatives.  Specifically  they  were  directed  to 
"oppose  any  grants  for  erecting,  maintaining,  or  gar- 
risoning any  useless  or  unnecessary  forts  or  fortresses, 
in  any  part  of  this  province";  if  any  such  forts  were 
being  maintained,  it  was  the  duty  of  the  representatives, 
so  the  instructions  declared,  to  have  the  grievances 
speedily  redressed. 

Next  the  representatives  were  instructed  to  secure  the 

10  John  Adams,  Works,  II,  144 ;  see  also  Boston  Evening  Post,  March  14, 
21,  1763,  for  other  accounts.     John  Adams,  December  23,  1765,  wrote  that 
he  went  with  his  cousin  Samuel  to  the  Monday  Night  Club.     ' '  Politicians 
all  at  this  club.     We  had  many  curious  anecdotes  about  governors,  coun- 
sellors, representatives,  demagogues,  merchants,  etc." 

11  The  following  references  throw  light  on  Adams  *  services  in  linking 
together  town  meeting  and  legislature:  Boston  Town  Sees.,  XVI,  152,  159, 
161,  182;  Mass.  H.  Journal,  October  23,  24,  29,  1765;  January  16,  17,  1766. 

12  Boston  Town  Eecs.,  XVI,  182  et  seq. 


32  DEVELOPMENT  OF  LAWMAKING 

passage  of  an  act  to  make  debates  in  the  House  of  Repre- 
sentatives as  public  as  those  in  the  House  of  Commons. 

With  reference  to  appropriations  for  government 
officials,  the  town  advised  its  representatives  not  to  be 
"persimonious  in  the  support  of  executive  officers  of 
government,"  but  at  the  same  time  "to  use  all  their 
influence  against  any  one  officer's  holding  two  or  more 
places  inconsistent  or  interfering  with  each  other. ' '  This 
was  aimed  at  Thomas  Hutchinson,  who  was  lieutenant- 
governor,  member  of  the  Council,  chief  justice  of  the 
Superior  Court,  as  well  as  judge  of  probate. 

Finally,  the  instructions  contained  the  following  advice 
for  guidance  in  the  election  of  the  Council:  "Ordered 
that  you  take  particular  care  in  your  choice  of  councilers 
and  other  officers  of  the  government  for  the  ensuing  year, 
that  they  be  men  of  integrity  and  wisdom,  lovers  of 
liberty,  and  of  our  civil  and  ecclesiastical  constitution; 
not  giving  your  suffrage  for  any  whose  characters  are 
doubtful,  or  who  are  of  a  timid  or  wavering  disposition." 

The  subjects  enumerated  in  these  instructions  were 
brought  before  the  House,  and,  what  is  more  to  the  point, 
they  received  favorable  attention.  In  compliance  with 
the  advice  regarding  fortresses,  the  House  voted  to 
reduce  the  forces  at  Castle  William  and  also  at  Fort 
Pownall.13  On  June  11,  a  committee  was  appointed  to 
arrange  for  the  construction  of  a  gallery  for  spectators, 
and  the  debates  were  duly  thrown  open  to  the  public.14 
Then,  to  impress  upon  Hutchinson  the  fact  that  they 
disapproved  of  his  holding  so  many  offices,  the  members 
refused  to  vote  any  salary  for  the  lieutenant-governor. 
As  a  matter  of  fact  in  this  instance  the  House  was  carry- 
ing out  a  well-established  custom,  for  it  had  never  given 
Hutchinson  any  salary  for  that  office,  although  he  had 

is  Mass.  H.  Journal,  June  21,  25,  26,  1766. 
i*  Ibid.,  June  11,  1766. 


PARTY  ORGANIZATION  33 

held  it  for  several  years.15  The  final  instruction 
regarding  the  choice  of  members  of  the  Council  was 
scrupulously  obeyed.  It  is  clear  that  the  Boston 
"  Junto "  was  eminently  successful  in  securing  the 
adoption  of  its  legislative  program. 

In  the  winter  session  of  1767-1768  the  directors  of  the 
Whig  forces  were  clearly  responsible  for  the  little  work 
that  was  turned  out.  When  the  General  Court  convened, 
late  in  December,  a  committee  on  the  state  of  the  prov- 
ince was  appointed,  consisting  of  Cushing,  Otis,  Adams, 
and  Hancock,  the  Boston  delegation,  and,  in  addition, 
James  Otis,  Senior,  Hawley  of  Northampton,  a  radical 
of  radicals,  Bowers  and  Dexter,  whose  election  to  the 
Council  had  been  negatived  by  Bernard,  and  Sheaffe, 
another  active  Whig.16  The  tangible  results  of  the  ses- 
sion were  first  a  series  of  resolutions  urging  a  policy  of 
non-importation,  to  defeat  the  Townshend  Acts.  These 
were  nothing  but  a  repetition  of  some  previously  adopted 
by  the  Boston  town  meeting,  just  before  the  meeting  of 
the  legislature.  As  usual,  the  town  ordered  its  repre- 
sentatives to  have  these  measures  of  passive  resistance 
adopted  by  the  House.  Then  letters  in  which  the  cause 
of  the  Americans  was  set  forth  were  despatched  to  Cam- 
den,  Chatham,  Shelburne,  Conway,  Rockingham,  and  to 
the  Commissioners  of  the  Treasury.  The  masterpiece  of 
the  session  was  the  famous  circular  letter  that  brought 
so  much  notoriety  to  Massachusetts.17  All  these  literary 
productions  were  drafted  by  the  committee  named,  or 
under  its  immediate  supervision. 

Up  to  this  point  the  "Junto"  had  been  noisy  and  dis- 
agreeable, at  least  from  Bernard's  point  of  view,  and  it 
had  tied  his  hands  when  he  wished  to  protect  the  colony 

is  Mass.  H.  Journal,  June  12,  1765. 
IB  Hid.,  December  30,  1767. 

17  Boston  Town  Bees.,  XVI,  221-226;  H.  Journal,  January  15,  20,  22,  29; 
February  2,  11,  13,  17,  26,  1768. 


34  DEVELOPMENT  OF  LAWMAKING 

from  mob  violence.  It  had  not,  however,  openly  taken 
liberties  with  the  charter  to  the  extent  of  encroaching 
on  executive  prerogative.  But  in  1768  the  party  machine 
which  enjoyed  so  much  power,  both  in  the  town  meeting 
and  in  the  General  Court,  tried  to  call  a  meeting  of  the 
assembly  after  its  dissolution  by  Governor  Bernard.  In 
June  of  that  year  the  cargo  of  the  Liberty,  one  of  John 
Hancock's  sloops,  had  been  landed  without  payment  of 
duty,  and  the  offense  was  magnified  in  the  eyes  of  the 
British  officials  by  the  owner's  boasts  before  the  act 
itself  occurred.  The  vessel  was  seized  by  the  customs 
officials,  who  were  in  turn  attacked  by  a  mob.  The 
officers  themselves  were  stoned,  the  windows  of  their 
houses  broken,  and  the  collector's  boat  was  dragged  up 
to  the  Common  and  burned.18  It  was  this  manifestation 
of  lawlessness  which  seems  to  have  led  to  the  final  deci- 
sion to  send  British  troops  to  Boston.  Although  the 
General  Court  was  in  session  at  the  time  of  the  riot, 
Bernard  dissolved  it  a  few  days  thereafter.  Acting  upon 
instructions  from  home,  he  had  peremptorily  ordered 
the  House  to  rescind  its  circular  letter,  and  the  House 
stubbornly  refused  to  yield.  After  an  interchange  of 
messages  which  fairly  bristled  with  bitter  feeling  on  both 
sides,  the  governor  put  an  end  to  the  life  of  that  particu- 
lar assembly,  and  after  the  riot  he  refused  to  comply  with 
the  demands  of  the  town  of  Boston  that  writs  for  a  new 
election  be  issued.19 

Thereupon  followed  an  act  that  bordered  close  on 
revolution,  namely,  the  attempt  on  the  part  of  the  politi- 
cal leaders  of  Boston  to  summon  an  assembly  on  their 
own  responsibility.  After  their  fruitless  calls  upon  the 
governor,  the  town  authorities  voted  to  appoint  repre- 
sentatives to  a  "Committee  of  Convention."  The  call 

is  Boston  Evening  Post,  June  30,  1768. 

is  Boston  Town  Eecs.,  XVI,  260;  Journal  Mass.  H.  of  E.,  June  30,  1768. 


PARTY  ORGANIZATION  35 

was  issued  to  all  the  other  towns  in  the  province  to  send 
in  their  representatives.  The  Boston  town  meeting 
selected  as  its  delegates  the  four  who  looked  after  its 
interests  in  the  House  of  Representatives :  Otis,  Gushing, 
Adams,  and  Hancock.20  The  purpose  of  the  whole  thing 
was  of  course  to  have  a  popular,  or  at  least  a  representa- 
tive, assembly  in  session  when  the  expected  troops 
arrived. 

On  the  day  appointed,  September  26,  1768,  representa- 
tives to  the  number  of  seventy,  from  about  sixty  differ- 
ent towns,  gathered  in  Faneuil  Hall.  For  chairman  the 
Speaker  of  the  last  House,  Thomas  Gushing,  was  chosen, 
apparently  with  the  idea  of  giving  a  touch  of  regularity 
to  the  proceedings.21  After  petitioning  Governor  Ber- 
nard to  issue  writs  for  a  new  election,  the  Convention 
drafted  a  set  of  resolutions,  in  which  illegal  intentions 
were  disclaimed,  and  loyalty  to  the  king  was  righteously 
asserted.  Thereupon  the  work  came  to  an  abrupt  end, 
and  after  remaining  in  session  for  only  a  week,  the  mem- 
bers left  for  their  homes  the  day  after  the  first  troop 
transports  arrived  at  Nantasket.22  The  unexpected  mod- 
eration of  the  leaders,  so  different  from  their  usual 
demeanor,  was  due,  so  Bernard  wrote,  to  the  presence 
of  many  cautious  members,  who  consented  to  attend  for 
the  express  purpose  of  restraining  the  Boston  " Junto." 
Because  of  the  firm  stand  taken  by  these  men,  Samuel 
Adams  was  silenced  when  he  tried  to  launch  out  into  the 
violent  language  to  which  the  House  of  Representatives 
had  become  accustomed.23  The  first  attempt  to  bring  a 
revolutionary  convention  into  existence  was  a  failure. 

20  Boston  Town  Sees.,  XVT,  263. 

21  Boston  Evening  Post,  September  26,  1768;  Hutchinson,  Hist,  of  Mass., 
Ill,  208-212. 

22  md.,  Ill,  211. 

23  Boston  Evening  Post,  September  11,  1769,  quoting  a  letter  of  Bernard 
to  Hillsborough,  September  27,  1768. 


36  DEVELOPMENT  OF  LAWMAKING 

The  importance  of  this  meeting  is  to  be  found,  not  in 
its  actual  accomplishment,  measured  in  deeds,  or  even  in 
words,  but  in  the  fact  that  it  met  at  all.  According  to  the 
charter,  the  power  of  summoning  a  new  assembly  before 
the  time  set  for  the  regular  elections,  was  vested  exclu- 
sively in  the  governor.  In  effect  this  "Committee  of 
Convention"  was  really  a  Provincial  Congress,  similar 
to  the  one  summoned  in  1774.  In  other  words,  the 
machinery  of  the  later  revolutionary  government  was 
given  an  actual  trial  in  1768.  Even  though  public  opin- 
ion was  not  quite  ready  to  sanction  the  complete  assump- 
tion of  governmental  authority  by  the  radical  leaders,  it 
was  a  recognized  fact  that  all  real  power  was  in  their 
hands.  In  reporting  on  the  condition  in  Massachusetts 
shortly  after  his  arrival,  General  Gage  wrote  Hills- 
borough  that  "those  mad  people  (the  Whig  leaders) 
have  governed  the  town  and  influenced  the  province  a 
very  long  time.  .  .  ."  After  a  careful  survey  of  the 
situation  as  a  whole,  he  went  on:  "from  what  has  been 
said,  your  lordship  will  conclude  that  there  is  no  govern- 
ment in  Boston,  there  is  in  truth  very  little  at  present, 
and  the  constitution  of  the  province  leans  so  much  to 
democracy,  that  the  governor  has  not  the  power  to 
remedy  the  disorders  which  happen  in  it.'"4  According 
to  this  statement,  the  organization,  which  was  a  munici- 
pal machine  and  a  legislative  committee  combined,  had 
practically  superseded  the  regular  institutions  of  gov- 
ernment in  the  colony.  To  be  sure  it  is  difficult  to  point 
out  specific  instances  of  their  assumption  of  regular 
administrative  functions,  and  it  is  probably  true  that 
the  leaders  were  aiming,  not  at  the  consolidation  of  the 
executive  with  the  legislature,  but  rather  at  the  clog- 
ging of  the  wheels  of  British  officialdom.  The  natural 

2*  Gage  to  Hillsborough,  October  31,  1768,  p.  18,  in  a  collection  published 
by  Edes  and  Gill. 


PARTY  ORGANIZATION  37 

outcome  of  this  policy  of  obstruction  would  inevitably 
be  the  rise  to  power  of  the  committee  in  the  legislature. 
They  could  not  destroy  one  kind  of  authority  without 
putting  something  else  in  its  place. 

Even  though  the  main  purpose  of  the  " Junto"  was 
negative  rather  than  positive,  in  case  of  need  it  could  take 
definite  steps  to  bring  other  branches  of  the  government 
under  its  own  control.  When  the  British  government 
announced  its  intention  of  providing  salaries  for  colonial 
executive  and  judicial  officials  out  of  the  royal  treasury, 
the  local  legislatures  promptly  bethought  themselves  of 
means  to  thwart  the  plan.  In  Massachusetts  the  General 
Court  did  not  complain  very  bitterly  when  Governor 
Hutchinson  reported  that  he  would  no  longer  need  the 
salary  provided  by  the  colony.  There  seemed  to  be  a 
general  feeling  that  his  power  had  ceased  to  be  danger- 
ous, and  that  the  province  was  relieved  of  an  unnecessary 
expense.  But  the  equanimity  with  which  they  greeted 
Hutchinson 9s  declaration  gave  way  to  excited  concern 
when  royal  salaries  were  proposed  for  the  justices  of 
the  Superior  Court.  After  a  desultory  discussion  for 
several  weeks,  the  House  of  Eepresentatives  finally 
announced  its  policy.  In  the  first  place  it  gave  the  jus- 
tices an  opportunity  to  declare  explicitly  whether  or 
not  they  would  take  advantage  of  the  new  provision.  If 
they  refused  to  commit  themselves,  they  were  to  be 
denounced  as  enemies  of  their  country.  In  the  case  of 
any  who  should  prove  to  be  so  devoid  of  patriotism  as 
to  accept  the  new  salaries,  the  House  declared  that  it 
would  be  "the  indispensible  duty  of  the  Commons  of  this 
province,  to  impeach  them  before  the  governor  and  coun- 
cil, as  men  disqualified  to  hold  the  important  posts  they 
now  sustain.  "25  The  importance  of  this  threat,  involv- 
ing an  assumption  of  power  that  was  radically  new,  even 

25  Journal  Mass.  H.  of  E.,  June  28,  1773,  p.  94. 


38  DEVELOPMENT  OF  LAWMAKING 

in  Massachusetts,  can  hardly  be  overstated.  The  House 
possessed  no  power  of  impeachment,  nor  had  it  any  right 
to  use  the  term  "Commons  of  this  province."  The  epi- 
sode shows  clearly  enough  that  the  Whigs  were  deter- 
mined to  raise  their  legislature  to  the  level  of  the 
Commons  in  England. 

After  making  its  threat,  the  House  gave  the  justices 
ample  time  to  ponder  over  the  possible  results  of  a 
refusal  to  surrender.  By  February  both  parties  had 
made  up  their  minds.  One  member  of  the  court,  Trow- 
bridge,  announced  that  he  would  accept  no  salary  paid 
under  royal  warrant,  and  his  statement  was  accepted  as 
satisfactory  by  the  House.  The  other  judges  kept  their 
own  counsel,  and  the  House  voted  to  demand  a  definite 
declaration  of  their  intentions  within  a  week.  Three  of 
the  remaining  justices  thereupon  gave  the  required 
pledge,  and  agreed  to  accept  the  compensation  granted 
by  the  House.  Peter  Oliver,  the  chief  justice,  was  the 
only  one  to  stand  out,  and  he  took  up  the  challenge  of  the 
House.  After  bluntly  stating  that  he  had  found  it 
impossible  to  live  on  the  niggardly  salary  provided  by 
the  legislature,  he  said  that  he  intended  to  take  advan- 
tage of  the  new  grants.  The  only  answer  of  the  House 
was  the  institution  of  impeachment  proceedings.  For- 
mal articles  were  drawn  up  and  laid  before  the  Council, 
but  Hutchinson  prevented  definite  action  by  absenting 
himself.  Soon  afterward  he  put  an  end  to  the  contest 
by  proroguing  the  assembly.26  Thus  the  impeachment 
itself  was  a  failure,  but  in  spite  of  that  the  real  victory 
lay  with  the  House.  Four  justices  had  been  brought  to 
terms,  and  the  attempt  to  establish  an  independent  judi- 
ciary came  to  naught.  In  this  whole  episode  the  names 
of  the  regular  Whig  leaders  constantly  recur,  particu- 

26  Journal  Mass.  H.  of  E.,  February  1,  2,  7,  8,  24,  1774,  pp.  113,  117, 
133-135,  137-139,  194-199. 


PARTY  ORGANIZATION  39 

larly  in  the  committees  appointed  to  draft  the  numerous 
resolutions  and  messages.  The  work  was  certainly  car- 
ried on  under  their  supervision,  and  they  were  undoubt- 
edly responsible  for  its  direction.  The  net  result  of  their 
victory,  for  such  it  was,  was  to  bring  the  Superior  Court 
under  the  control  of  the  Boston  "  Junto. " 

The  effect  of  this  bitter  political  contest  upon  the 
administration  can  easily  be  imagined.  Even  as  early 
as  1769,  Governor  Bernard  was  utterly  discouraged. 
According  to  his  testimony,  and  he  was  in  a  position  to 
know,  the  royal  executive  in  Massachusetts  had  become 
a  mere  cipher.  His  analysis  of  the  situation  in  a  letter 
to  Barrington  is  an  illuminating  commentary  on  the 
strength  of  the  Whig  party  leaders.  "In  short,  my 
Lord,"  he  wrote,  "this  Government  is  now  brought  to 
this  state,  that  if  the  Cheifs  of  the  Faction  are  not  pun- 
ished or  at  least  so  far  censured  as  to  be  disqualified 
from  holding  Offices,"  if  the  appointment  of  the  Council 
is  not  given  to  the  king,  and  if  the  crown  officials  are  not 
given  salaries  independent  of  the  people,  "It  signifies 
little  who  is  Governor.  Whoever  he  is,  he  must  either 
live  in  perpetual  contention  in  vainly  endeavoring  to 
support  the  royal  Rights,  or  he  must  purchase  Peace  by 
a  prudential  Sacrifice  of  them.  But  for  these  4  years 
past  so  uniform  a  system  of  bringing  all  Power  into 
the  Hands  of  the  People  has  been  prosecuted  without 
Interruption  &  with  such  Success  that  all  Fear  Rever- 
ence, Respect  &  Awe  which  before  formed  a  tolerable 
Ballance  against  the  Power  of  the  People,  are  annihil- 
ated &  the  artificial  Weights  being  removed,  the  royal 
Scale  mounts  up  and  kicks  the  Beam.  And  I  do  assure 
your  Lordship  that  if  I  was  to  answer  to  his  Majesty 
himself  on  this  Subject,  I  would  give  it  as  my  Opinion 
that  if  he  cannot  secure  to  himself  the  Appointment  of 
the  Council,  it  is  not  worth  while  to  keep  that  of  the 


40  DEVELOPMENT  OF  LAWMAKING 

Governor.  For  it  would  be  better  that  Mass  Bay  should 
be  a  complete  Republic  like  Connecticut  than  to  remain 
with  so  few  Ingredients  of  royalty  in  it  as  shall  be  insuffi- 
cient to  maintain  the  real  royal  character. )m  After  the 
new  elections  he  wrote  again,  in  a  still  more  melancholy 
tone.  "Tomorrow  the  new  Assembly  meets,  which  will 
be  allmost  wholly  composed  of  the  Tools  of  the  Faction. 
Many  of  the  Friends  of  Government  have  been  turned 
out ;  Many  have  declined  serving ;  the  few  who  will  be  in 
the  House  will  be  only  Spectators.  So  that  the  Faction 
will  have  everything  in  their  hands."28 

Bernard's  pessimistic  prophecy  was  fulfilled  when  the 
legislature  assembled.  At  the  very  beginning  of  the  ses- 
sion, before  choosing  the  Speaker  and  clerk,  the  House 
appointed  two  committees,  composed  of  the  Whig  lead- 
ers, to  draw  up  resolutions  against  meeting  under  the 
guns  of  the  troops.  The  resolutions  were  brought  in  at 
once,  ready  made  beforehand.29  After  transacting  that 
business  before  they  were  formally  organized,  the  mem- 
bers chose  their  officials,  and  then  turned  to  the  election 
of  the  Council.  The  characteristics  of  those  chosen,  and 
incidentally  the  state  of  mind  of  Governor  Bernard,  can 
be  gathered  from  the  fact  that  out  of  the  twenty-eight 
named,  he  outdid  his  previous  efforts,  and  negatived 
eleven.30 

Bernard,  who  had  been  recalled,  left  the  province  in 
July,  1769,  and  turned  over  his  office  to  Thomas  Hutchin- 
son.  By  that  time  the  position  had  become  more  of  an 
embarrassing  liability  than  a  valuable  asset.  The  vio- 
lent controversies  of  the  preceding  years  had  com- 
pletely alienated  the  legislature  from  the  royal  governor, 
and  had  virtually  transferred  all  real  authority  from  the 

27  Channing  &  Coolidge,  Barrington-Bernard  Corresp.,  p.  197. 

28  md.,  203-205. 

29  Moss.  H.  Journal,  May  31,  1769,  pp.  5-7. 
so  IMd.,  p.  9. 


PARTY  ORGANIZATION  41 

executive  to  the  General  Court.  Partisan  bitterness  was 
thus  bringing  about  an  important  change  in  the  govern- 
ment itself. 

Hutchinson  retained  his  post  until  1774.  When  he 
sailed  for  England  he  said  that  the  governor  had  noth- 
ing left  but  an  empty  title.31  It  is  clear  that  the  colonial 
administrative  system  of  Great  Britain  had  completely 
broken  down  in  Massachusetts.  While  it  is  difficult  to 
point  to  specific  instances  of  the  assumption  by  the  legis- 
lature of  the  governor's  prerogative,  nevertheless  we 
have  the  statements  of  two  retiring  executives  that  all 
the  attributes  of  authority  had  passed  to  the  leaders  of 
the  assembly.  Even  the  British  government  took  this 
view  of  the  situation.  Hutchinson  was  succeeded  by 
General  Gage,  in  the  capacity  of  military  governor.  This 
appointment  is  in  itself  evidence  enough  that  the  state- 
ments of  Bernard  and  Hutchinson  had  been  taken  at 
their  face  value.  Authorized  civil  government  had  come 
to  an  end,  and  the  instrument  responsible  for  the  change 
was  the  Boston  " Junto." 

Gage's  commission  marked  the  end  of  all  pretense  of 
cooperation  between  colony  and  home  government. 
Events  moved  rapidly  after  he  attempted  to  take  charge, 
and  in  October,  1774,  the  first  Provincial  Congress  met 
in  Massachusetts.  The  de  facto  government  established 
was  on  the  surface  very  different  from  the  system  pro- 
vided for  in  the  charter.  The  governor  and  council  were 
dropped,  and  executive  authority  was  vested  in  or 
assumed  by  a  committee  of  safety,  composed  of  the  lead- 
ing members  of  the  Congress.  In  reality,  however,  no 
sudden  or  abrupt  change  had  taken  place,  because  the 
evidence  shows  that  the  charter  had  been  virtually  super- 
seded before  1774.  The  Provincial  Congress  was  merely 
the  House  of  Representatives  under  a  new  name,  and 

si  Hutchinson,  Hist,  of  Mass.,  Ill,  455. 


42  DEVELOPMENT  OF  LAWMAKING 

the  committee  was  the  *  '  Junto. ' '  The  revolutionary  gov- 
ernment had  gradually  grown  up  within  the  old,  and  in 
due  time  supplanted  it;  its  acceptance  was  simply  the 
recognition  of  an  accomplished  fact.  In  the  process 
of  transition  from  colony  to  state,  the  party  organ- 
ization in  the  legislature  was  the  most  effective  and 
important,  as  well  as  the  most  conspicuous  factor. 

In  Virginia  a  similar  development  was  taking  place, 
and  the  process  of  stripping  power  from  the  governor 
was  not  so  very  different  from  that  just  described  in 
Massachusetts.  In  1754,  when  trouble  with  the  French 
and  Indians  seemed  imminent,  Governor  Dinwiddie  did 
his  utmost  to  arouse  in  the  legislature  an  appreciation 
of  the  seriousness  of  the  approaching  crisis,  and  to 
induce  the  members  to  provide  funds  and  troops  for  an 
active  campaign.  His  endeavors  to  secure  appropria- 
tions were  constantly  thwarted  by  the  opposition  in  the 
House,  and  it  appears  that  this  opposition  was  directed 
by  a  committee  very  much  like  the  "  Junto  "  in  Massachu- 
setts. On  January  14,  1754,  the  assembly  met,  but  to 
Dinwiddie's  distress  they  were  "very  much  in  a  Repub- 
lican way  of  thinking, "  so  that  they  did  "not  act  in  a 
proper  Constitutional  way.  .  .  ."  Finally,  "with  great 
Perswasions,  many  Argum'ts  and  much  Trouble,  they 
were  prevailed  on  to  vote  10000£  for  protecting  our 
Frontiers;  That  Bill  was  so  clogg'd  with  unreasonable 
regulates  and  Encroachm'ts  on  the  Prerogative,  that  I, 
by  no  means,  w'd  have  given  my  assent  to  it  if  His  My's 
Service  had  not  immediately  calPd  for  a  Supply  to  sup- 
port the  Expedt.  I  have  in  view,  to  support  His  My's 
just  rights  to  the  Lands  on  the  Ohio.  They  plead  Prece- 
dents in  raising  money  in  this  Method,  w'ch  I  found 
was  so  in  my  Predecessor's  Time.  .  .  .  This  I  urg'd  sh'd 
not  be  a  Precd't  as  it's  contrary  to  His  My's  Int't,  how- 
ever, as  the  Exigency  of  the  pres't  Affair  c'd  not  be 


PAETY  ORGANIZATION  43 

Otherways  supplied,  I  was  obliged  to  submit,  and  for 
that  reason  I  hope  I  shall  stand  excused. >m  The  heinous 
sin  which  the  Burgesses  committed,  in  the  governor's 
eyes,  was  the  addition  to  this  bill  of  a  clause  which  gave 
authority  over  the  expenditure  of  the  money  appro- 
priated to  a  committee  named  in  the  bill.  "This  Bill," 
wrote  Dinwiddie  later  on, '  '  takes  from  me  the  undoubted 
right  I  have  of  directing  the  Applicat'n  of  the  Money 
rais'd  for  the  Defense  of  the  Dom'n.  .  .  ."" 

This  determination  of  the  House  to  restrict  the  power 
of  the  governor  was  brought  into  prominence  again,  when 
the  members  attempted  to  prevent  Dinwiddie  from  col- 
lecting a  fee  of  one  pistole  for  signing  and  sealing  land 
patents.  The  Burgesses  protested  against  the  fee,  and 
the  governor  replied  to  the  effect  that  his  instructions 
had  authorized  the  collection  of  the  fee.  This  was  a 
serious  matter  to  the  House,  and  the  members  planned 
to  carry  the  dispute  before  the  home  government.  For 
this  purpose  they  appointed  Peyton  Randolph  as  their 
agent,  and  voted  to  pay  him  £2,500.  The  Treasurer  was 
ordered  to  make  this  payment,  even  though  the  governor 
and  Council  should  refuse  their  assent.  Robinson,  who 
served  in  the  dual  capacity  of  Speaker  and  Treasurer, 
declared  that  he  would  make  the  payment  if  the  House 
authorized  him  to  do  so,  but  at  the  last  moment  his 
courage  failed  him.  Finally  the  favorite,  colonial  device 
of  a  rider  was  adopted.  The  governor  wanted  £20,000 
more  for  military  purposes.  To  a  bill  making  the  desired 
appropriation,  the  House  attached  a  clause  authorizing 
the  payment  to  Randolph.34  Dinwiddie  declared  that  the 
use  of  the  rider  was  unconstitutional,  and  rather  than 
accept  defeat  in  this  case,  he  prorogued  the  legislature 

32  Dinwiddie  Papers,  I,  98,  100. 
as  Hid.,  I,  156. 

s*  Dinwiddie 's  story  of  this  affair  is  told  in  a  series  of  letters,  Dinwiddie 
Papers,  I,  44-47,  140-141,  160-161,  298-301,  307. 


44  DEVELOPMENT  OF  LAWMAKING 

without  getting  Ms  money.  He  wrote  to  Abercrombie 
that  ' 1  There  is  such  a  Party  and  Spirit  of  Opposition  in 
the  lower  Ho.  y't  it's  not  in  the  Power  of  the  Gov'r  to 
suppress,  unless  he  is  to  prostitute  the  rules  of  Gov't, 
and  act  inconsistent  with  his  Instructs.  I  have  really 
gone  thorow  monstrous  fatigues,  w'ch  I  sh'd  not  much 
regard  if  I  c'd  answer  the  Com'ds  of  His  M'y,  but  such 
wrong  headed  People  (I  thank  God)  I  never  had  to  do 
with  before."35 

After  this  outburst  of  righteous  indignation,  Din- 
widdie  waited  until  the  following  year  before  he  made 
any  further  requests  upon  the  House  of  Burgesses.  The 
recess,  however,  had  soured  rather  than  sweetened  the 
tempers  of  the  members.  The  discouraged  executive 
wrote  that  "Our  Assembly  met  the  29th  Ult'o,  but  not 
above  one-half  of  them  gave  their  Attendance.  They  fell 
into  Cabals  .  .  .  They  further  propos'd  a  Secret  Com- 
mittee, w'ch  in  course  w'd  have  been  the  Beginning  of 
great  Dissentions.  They  were  likewise  very  mutinous 
and  unmannerly."  Dinwiddie  thereupon  dissolved  them, 
and  took  the  chance  of  an  improvement  after  a  new  elec- 
tion. At  least,  he  wrote,  the  new  House  "cannot  be  as 
bad  as  the  last."36 

Dinwiddie 's  complaints  serve  to  bring  out  some  of  the 
characteristics  of  the  House  of  Burgesses  and  its  inter- 
nal organization.  The  "Secret  Committee"  which  he 
referred  to  was  probably  not  unlike  the  "Junto"  in 
Massachusetts.  Some  such  organization  was  evidently 
guiding  the  House  in  its  attempts  to  limit  the  power  of 
the  executive  in  military  and  financial  affairs.  Then  as 
the  authority  of  the  House  was  gradually  extended,  the 
importance  of  the  Speaker-treasurer  was  greatly  en- 
hanced. Governor  Dobbs  of  North  Carolina  even  went 

35  Dinwiddie  Papers,  I,  300. 

36  Hid.,  II,  273.  * 


PARTY  ORGANIZATION  45 

so  far  as  to  assert  that  "the  Speaker  as  Treasurer  rules 
the  assembly. >m 

An  analysis  of  the  standing  committee  appointments 
in  Virginia  brings  out  the  interesting  fact  that  member- 
ship in  those  important  groups  was  largely  restricted  to 
the  representatives  from  the  tidewater  counties.  What 
little  evidence  there  is  points  to  the  control  of  legisla- 
tive business  by  a  "ring,"  composed  of  the  conservative 
planters  who  really  governed  Virginia.  Robinson's 
power  as  Speaker  rested  partly  on  his  control  of  finance, 
and  partly  on  his  influence  with  this  inner  committee. 

It  was  not  only  in  the  large  legislatures  of  Massachu- 
setts and  Virginia  that  there  appeared  these  manifesta- 
tions of  political  manipulation.  Even  in  Georgia  the 
assembly  was  effectively  managed  by  a  group  opposed 
to  the  governor.  On  one  occasion  in  1756  the  executive 
tried  to  put  a  stop  to  further  proceedings  on  a  certain 
measure  by  sending  a  message  to  the  Speaker  ordering 
him  to  adjourn  the  House.  After  the  manner  of  colonial 
legislatures,  that  body  showed  nothing  but  contempt  for 
his  command.  The  Speaker's  report  of  the  episode  is  an 
illuminating  commentary  on  colonial  legislative  methods. 
The  governor  sent  in  his  message  at  "about  Elleven  of 
the  Clock  in  the  forenoon.  ...  As  I  took  hold  of  it  and 
was  going  to  rise  it  was  seized  in  my  hand  by  one  of  the 
Members  who  said  that  I  should  not  get  it  or  should  not 
read  it  or  Words  to  that  Effect.  I  strugled  for  it,  for 
some  time  but  was  Obliged  to  Yield  it  Otherwise  it  would 
have  been  torn  I  then  stood  up  and  declared  that  I 
thought  I  had  no  right  to  set  there  as  I  was  firmly  per- 
suaded the  House  was  adjourned  and  that  nothing  that 
could  be  done  after  that  would  be  deem'd  Valid  and 
therefore  would  leave  the  Chair  then  all  or  most  of  them 
arose  up  and  said  they  would  Oblige  me  to  keep  the  Chair 

37  N.  C.  Col  Sees.,  V,  949. 


46  DEVELOPMENT  OF  LAWMAKING 

that  I  had  no  right  to  leave  it  without  the  consent  of  the 
House,  That  the  House  was  not  or  could  not  be  adjourned 
untill  the  Message  was  given  at  the  Clerks  table  Eead 
by  him  and  then  adjourned  by  the  Speaker  that  they 
would  set  and  Oblige  me  to  set  untill  Twelve  of  the  Clock 
at  night  if  the  Business  that  was  then  on  hand  was  not 
finished  before  Many  times  afterwards  I  rose  in  order 
to  leave  the  chair  and  told  them  over  and  over  that  I 
could  not  set  or  Act  longer  that  we  was  no  sitting  Assem- 
bly that  every  thing  must  be  void  that  we  did,  but  was 
always  Obliged  to  set  down  again  They  appointed  Sev- 
eral Committees  I  refused  to  chuse  the  Members  they 
chuse  them  themselves  They  did  Several  other  Things 
but  I  had  no  hand  in  them  I  kept  silent,  They  read  and 
past  a  paper  to  address  to  his  Excellency  and  offered  it 
to  me  to  sign  which  I  absolutely  refused  (as  I  thought  the 
Assembly  was  adjourned)  But  they  told  me  in  a  Com- 
manding and  Peremptory  manner  Sir  you  shall  sign  it 
we  will  Oblige  you  to  sign  it  you  have  no  Right  Sir  to 
refuse  to  sign  anything  that  passes  this  House  I  again 
told  them  I  did  not  look  upon  this  as  a  House  at  present 
but  all  I  could  say  was  to  no  purpose  I  was  Obliged  to 
sign  it  tho'  I  Publickly  declare  at  the  same  time  that  I 
was  forced  to  do  it  that  it  was  intirely  Contrary  to  my 
inclinations.  "38 

The  material  outlined  in  this  chapter  bears  out  the 
statement  already  made,  to  the  effect  that  there  always 
are  two  types  of  organization  in  the  average  legislature : 
the  official,  and  the  informal.  The  one  looks  after  routine 
work  connected  with  legislative  operations  proper,  while 
the  other  decides  what  business  shall  be  transacted  in 
any  given  session.  Both  forms  are  necessary,  but  the 
more  important  is  the  party  machine.  Without  such 
leadership  the  assemblies  would  degenerate  into  mere 

as  Ga.  Col  Bees.,  XIII,  100-101. 


PAETY  ORGANIZATION  47 

debating  contests,  with  no  power  of  constructive  action. 
Undoubtedly  a  minute  study  of  any  colonial  legislature 
would  yield  results  similar  to  those  described  here.  In 
at  least  two  colonies,  New  York  and  North  Carolina,  the 
power  of  the  party  committees  was  even  greater  than  in 
Massachusetts  or  Virginia,  and  the  leaders  in  the  legis- 
latures were  actually  transacting  considerable  business 
that  really  belonged  to  the  executive. 


NOTE  TO  CHAPTER  TWO 

The  following  list  of  committees  on  important  subjects  appointed  in  the 
House  of  Representatives  in  1766-1767  shows  how  business  was  controlled 
by  the  Boston  members  and  a  few  other  active  Whigs.  The  names  of  the 
Boston  members  are  in  capitals,  and  those  of  their  party  associates  in 
italic. 

1766 

May  29.  On  the  governor's  speech:  GUSHING,  OTIS,  ADAMS,  Partridge, 
Hawley,  Saunders,  Dexter. 

June  3.  On  the  governor's  message:  GUSHING,  OTIS,  ADAMS,  Hawley, 
Partridge,  Sowers. 

June  4.  To  thank  the  king  for  the  repeal  of  the  Stamp  Act:  GUSHING, 
Worthington,  OTIS,  ADAMS,  Partridge,  Dexter,  Bourne. 

June  10.  To  write  to  the  agent,  defending  the  course  of  Massachusetts 
during  the  Stamp  Act  agitation :  GUSHING,  ADAMS,  OTIS,  Hawley,  Partridge. 

June  11.  To  make  arrangements  for  opening  the  debates  in  the  House 
to  the  public:  HANCOCK,  OTIS,  ADAMS. 

June  24.  To  reply  to  the  governor  with  reference  to  an  indemnity  for 
those  who  had  suffered  in  the  Stamp  Act  riots:  GUSHING,  ADAMS,  Dexter, 
Saunders,  Richmond. 

October  30.  To  report  on  the  legality  of  the  act  of  the  governor  in 
causing  certain  Acts  of  Parliament  to  be  printed  in  the  province  law  book: 
Sheaffe,  OTIS,  Dexter. 

October  30.  On  certain  proclamations  of  the  governor:  GUSHING,  OTIS, 
HANCOCK,  Sheaffe,  Dexter. 

October  31.  On  the  governor's  speech,  regarding  indemnity:  GUSHING, 
OTIS,  Hawley,  Dexter,  HANCOCK,  Sheaffe,  Bowers. 

November  5.  To  reply  to  the  governor 's  speech :  Hawley,  Dexter,  Bowers, 
ADAMS,  Johnson. 

To  report  on  certain  acts  of  the  customs  officials:  OTIS,  Dexter,  Hancock. 

November  6.  To  frame  the  indemnity  bill:  GUSHING,  Hawley,  OTIS, 
Ruggles  (an  active  Hutchinson  man),  Dexter,  D wight,  Sheaffe. 

November  13.  To  report  on  trade:  GUSHING,  OTIS,  HANCOCK,  ADAMS, 
Sheaffe,  Dexter,  Brown,  Hall,  Boardman. 

On  letter  from  Shelburne:  GUSHING,  OTIS,  HANCOCK,  Brown,  ADAMS. 


48  DEVELOPMENT  OF  LAWMAKING 

December  5.  On  resolutions  regarding  the  indemnity  bill:  Hawley,  OTIS, 
ADAMS. 

December  7.  On  trade:  GUSHING,  Bourne,  Sheaffe,  Greenleaf,  Brown, 
Foster,  Warren. 

December  9.    On  royal  troops:  GUSHING,  OTIS,  Sheaffe,  ADAMS,  Dexter. 

1767 

February  3.  On  the  governor's  message  regarding  royal  troops:  GUSH- 
ING, OTIS,  Hawley,  Sheaffe,  ADAMS,  Dexter,  Ward. 

February  13.  On  the  governor's  message  regarding  the  agent's  salary: 
OTIS,  Sheaffe,  Dexter,  ADAMS,  Warren. 

February  27.  On  the  governor's  message  regarding  Newfoundland 
fisheries:  OTIS,  ADAMS,  Ward,  Bowers,  Gerrish. 

March  3.  To  write  to  the  agent  regarding  Hutchinson's  attempt  to  sit 
in  the  Council  after  he  had  been  dropped  from  that  body:  Hawley,  OTIS, 
ADAMS,  Sheaffe,  Bowers. 

March  18.    To  write  to  the  agent:  ADAMS,  Dexter,  Buggies. 


CHAPTER  III 

THE  " JUNTO"  IN  NEW  YORK  AND  NORTH 
CAROLINA 

In  the  history  of  these  colonial  assemblies  two  facts 
stand  out  very  clearly :  first,  the  lower  house  was  almost 
constantly  engaged  in  a  more  or  less  serious  controversy 
with  the  executive;  second,  in  the  assembly  there  devel- 
oped a  form  of  unofficial  organization  more  important 
than  that  provided  for  by  the  rules.  This  condition  of 
friction  tended  to  become  chronic,  and  as  a  result  the 
party  committee  became  more  and  more  powerful.  At 
first  it  was  nothing  but  a  check  on  the  governor ;  it  might 
bring  the  wheels  of  government  to  a  standstill,  but  it  had 
not  acquired  very  much  positive  authority.  A  deadlock 
in  government,  however,  cannot  last  indefinitely;  one 
party  or  the  other  will  eventually  get  the  upper  hand, 
and  in  this  case  the  legislature  proved  to  be  the  victor. 
As  time  went  on  the  popular  branch  of  the  government 
began  to  rise  above  the  executive,  and  to  dominate  it. 
The  governor's  hands  were  tied,  and  then  some  of  his 
power  was  taken  over  by  the  assembly.  By  controlling 
the  salaries  of  colonial  officials,  and  by  dictating  certain 
appointments,  the  lower  house  acquired  considerable 
influence  in  administrative  affairs.  But  executive  busi- 
ness cannot  well  be  handled  by  the  whole  legislature,  so 
the  "Junto,"  which  had  long  been  the  directing  force  in 
legislative  work,  took  charge  of  these  new  duties.  When 
a  committee  of  prominent  assemblymen  makes  up  the 
legislative  program  and  also  supervises  and  controls  the 


50  DEVELOPMENT  OF  LAWMAKING 

executive,  the  resulting  form  of  government  is  closely 
akin  to  the  parliamentary  system  of  England. 

In  New  York  the  "  Junto"  developed  early,  and  even 
before  1750  it  had  become  so  conspicuous  and  so  influ- 
ential that  the  governor  was  thoroughly  alarmed.  In 
1747  Clinton  sent  to  the  Board  of  Trade  a  detailed 
description  of  the  government  of  the  colony  as  it  was 
actually  carried  on.  According  to  him,  a  certain  Mr. 
Horsmanden  was  a  "principal  Actor  in  the  Faction,  that 
had  been  formed  in  the  Province  to  distress  the  Governor 
and  to  gain  the  administration  both,  Civil  and  Military 
into  their  own  hands."  Concrete  evidence  of  the  power 
of  this  "Faction"  is  to  be  found  in  "the  constant  meeting 
of  a  Committee  of  the  Council  and  Assembly,  who  never 
made  any  report  of  their  proceedings,  tho'  the  resolu- 
tions of  both,  Council  and  Assembly  were  directed  by 
them.  ..."  Mr.  Horsmanden  was  a  member  of  this 
committee,  and  drew  up  most  of  the  papers  prepared  by 
it.  In  working  out  its  plans,  the  "Faction"  tried  to  cur- 
tail all  supplies,  and  in  addition  it  influenced  the  Assem- 
bly to  place  all  public  funds  at  the  disposal  of  their  own 
"Dependants,"  so  that  the  governor  might  be  deprived 
of  all  power  over  expenditures.  More  important  still, 
they  had  induced  the  Assembly  to  assume  full  control 
of  the  appointment  of  administrative  officials,  and  of  the 
payment  of  their  salaries.  The  governor  was  not  even 
consulted  in  these  matters.1 

A  careful  analysis  of  the  situation  as  described  in  this 
report  shows  that  the  "Faction"  was  more  than  a  petty 
political  machine.  It  was  actually  the  directing  force 
in  the  government.  Party  leaders  in  the  legislature  were 
trying,  with  considerable  success,  to  extend  their  power 
over  the  executive  department. 

iN.  Y.  Col.  Docs.,  VI,  670-671,  September,  1747,  abstract  of  evidence 
in  the  books  of  the  Board  of  Trade. 


THE  "JUNTO"  IN  NEW  YORK  51 

References  to  the  aims,  operations,  and  successes  of 
the  "  Faction "  appear  in  later  letters  of  the  governors. 
In  1751,  Clinton  wrote  to  the  Board  of  Trade  that  "the 
Faction  in  this  Province  continue  resolute  in  pursuing 
their  scheme  of  assuming  the  whole  executive  powers 
into  their  hands,  and  that  they  are  willing  to  risk  the 
ruin  of  their  country,  in  order  to  carry  out  their  pur- 
poses."2 Golden  reported  practically  the  same  situation 
in  1765.3 

As  the  leaders  in  this  attack  upon  the  governor  gained 
more  experience,  their  methods  became  more  systematic 
and  effective.  Money  was  granted  and  paid  out  under 
the  authority  of  the  Speaker  of  the  Assembly  instead 
of  the  governor.  Salaries  of  royal  officials  were  pared 
down,  while  the  adherents  of  the  "  Faction "  were  liber- 
ally rewarded  for  their  loyalty.4 

This  assumption  of  financial  power  by  the  Speaker  was 
a  perfectly  natural  result  of  the  increasing  importance 
of  the  Assembly.  Formerly,  and  legally,  payments  were 
made  under  authority  of  the  governor's  warrant.  With 
the  popular  branch  of  the  legislature  in  control  of 
finance,  however,  it  was  to  be  expected  that  the  official 
leader  of  that  body  would  act  as  its  agent  in  making 
payments.  The  Speaker  was  not  exactly  the  Chancellor 
of  the  Exchequer,  but  it  would  have  taken  only  a  few 
more  years  of  uninterrupted  development  to  have  placed 
him  in  such  a  position. 

By  1766  financial  operations  had  become  so  well  sys- 
tematized that  Colden  could  make  the  following  explicit 
statement:  "The  ruleing  Faction  gain  an  absolute 
influence  over  the  officers  of  Government  by  the  Sallary 
of  every  officer  being  every  year  voted  or  appointed  by 

2  N.  T.  Col  Docs.,  VI,  751,  752. 

3  IMd.,  VII,  705-706. 

.,  VI,  764-765. 


52  DEVELOPMENT  OF  LAWMAKING 

the  Assembly,  lessened  or  encreased,  or  refused,  as  they 
like  the  Man  in  office,  and  the  Fund  is  yearly  raised  & 
applied  for  that  purpose.  "5  It  does  not  require  very 
much  imagination  to  guess  how  this  power  would  affect 
the  administrative  system  in  general,  and  the  governor's 
position  in  it  in  particular. 

Golden  likewise  sent  to  England  a  report  in  which  he 
described  the  component  parts  of  this  powerful  political 
organization.  He  said  in  the  first  place  that  there  were 
four  different  groups  or  social  classes  in  the  colony: 
the  proprietors  of  the  large  estates,  the  lawyers,  the 
merchants,  and  the  small  farmers  and  mechanics.  The 
first  two  groups,  he  wrote,  were  closely  affiliated  through 
family  ties.  Then  he  went  on  to  explain  how  the  lawyers 
were  able  to  dominate  the  legislature.  "The  Gentlemen 
of  the  Law  some  years  since  entered  into  an  association 
with  intention  among  other  things  to  assume  the  direc- 
tion of  Government  by  the  influence  they  had  in  the 
Assembly,  gained  by  their  family  connections  and  by  the 
profession  of  the  Law,  whereby  they  are  unavoidably 
in  the  secrets  of  many  Families — many  Court  their 
Friendship,  &  all  dread  their  hatred.  By  this  means,  tho ' 
few  of  them  are  Members,  they  rule  the  House  of 
Assembly  in  all  Matters  of  Importance.  The  greatest 
number  of  the  Assembly  being  Common  Farmers  who 
know  little  either  of  Men  or  Things  are  easily  deluded 
&  seduced.'' 

"By  this  association,  united  in  interest  &  family 
Connections  with  the  proprietors  of  the  great  Tracts  of 
Land,  a  Domination  of  Lawyers  was  formed  in  this 
Province,  which  for  some  years  past  has  been  too  strong 
for  the  Executive  powers  of  Government."6 

These    quotations    suggest    the    conclusion    that    the 

s  Golden,  Letters,  II,  90. 
e  Ibid.,  II,  68-78. 


THE  " JUNTO"  IN  NEW  YOEK  53 

1 '  Faction, '  '  or  unofficial  legislative  committee,  was  really 
a  Cabinet  in  a  small  way.  It  certainly  impressed  its 
policies  on  the  legislature,  and  if  Clinton  and  Colden 
can  be  trusted,  it  had  contrived  not  only  to  control  the 
administration,  but  also  to  make  the  officials  responsible 
and  subservient  to  itself.  It  is  perfectly  evident  that 
the  system  of  government  was  very  different  from  any- 
thing provided  for  by  charter,  and  also  wholly  unlike 
the  state  governments  established  after  the  Revolution. 
The  real  significance  of  this  development  was,  however, 
not  apparent  to  the  constitution  makers  of  the  latter 
part  of  the  eighteenth  century. 

Another  excellent  example  of  government  by  "  Junto" 
is  to  be  found  in  North  Carolina.  In  that  colony  the 
strife  between  executive  and  legislature  had  been  even 
more  bitter  than  in  New  York,  and  the  popular  branch 
as  usual  got  the  better  of  the  governors.  Methods  of 
political  manipulation  had  reached  a  highly  developed 
stage  there,  and  the  leaders  of  the  House  would  compare 
favorably  with  the  expert  managers  in  New  York.  In 
this  case,  too,  there  was  something  more  than  mere 
machine  control;  a  new  type  of  government  was  taking 
shape,  the  distinguishing  feature  of  which  was  the 
supremacy  of  the  majority  leaders  in  the  legislature. 

In  1757  the  "  Junto"  in  North  Carolina  was  directed  by 
four  members  of  the  Council,  who  entered  into  a  gentle- 
men 's  agreement  to  work  together.  Because  of  the  small 
size  of  the  upper  house,  four  men  acting  in  common  could 
easily  secure  control.  To  get  the  necessary  support  in 
the  lower  house,  they  allied  themselves  with  the  fairly 
compact  following  of  John  Starkey,  one  of  the  Treas- 
urers. He  had  taken  upon  himself  the  responsibility  of 
paying  the  members  their  salaries,  and  like  a  good 
politician  he  made  the  most  of  his  opportunities.  By 
judiciously  advancing  money  or  delaying  payment, 


54  DEVELOPMENT  OF  LAWMAKING 

according  to  the  nature  of  the  individual  case,  he  con- 
trived to  put  enough  members  under  obligation  to  himself 
so  that  he  could  be  sure  of  their  votes  when  wanted.  As 
Governor  Dobbs  wrote,  he  could  use  his  power  as  he 
pleased,  ' '  so  that  all  the  low  members  who  want  a  supply 
follow  him  like  chickens  so  that  he  sways  the  House 
against  the  most  sensible  members  in  it."7  Murray,  one 
of  the  four  councillors,  drafted  bills  for  this  aggregation. 
When  their  measures  happened  to  be  of  such  a  nature 
that  they  were  assured  of  the  governor 's  veto  in  advance, 
they  were  attached  to  revenue  bills,  in  the  shape  of 
riders.  Thus  if  their  favorite  measures  were  defeated, 
they  at  least  had  the  satisfaction  of  blocking  the  plans 
of  others.8 

In  North  Carolina  the  "Junto"  had  become  so  firmly 
established  that  its  continued  existence  was  not  depend- 
ent upon  any  particular  group  of  members.  On  the 
contrary,  it  had  grown  into  a  permanent  institution, 
which  continued  to  live  on  in  spite  of  changes  in  per- 
sonnel. In  1760  the  legislature  was  dominated  by  a 
group  of  lawyers,  whose  object  at  that  particular  time 
was  to  get  control  of  the  new  superior  court.  Child,  the 
attorney-general,  secured  a  following  by  promising 
rewards  to  influential  members  in  both  chambers.  To 
Samuel  Swann  he  promised  one  of  the  justiceships  in 
the  court  to  be  created.  Swann  approved  of  the  plan, 
whereupon  he  was  put  in  as  Speaker  of  the  House.  Then 
the  "Junto"  framed  a  bill  for  establishing  a  superior 
court,  in  which  they  imposed  such  ingenious  restrictions 
for  the  judicial  positions  that  only  three  men  could 
qualify :  Speaker  Swann,  Barker,  and  Jones,  all  intimate 
friends  of  Child,  the  chief  operator.  In  order  to  make 
sure  of  the  governor's  assent,  the  "Junto"  refused  to 

7  N.  C.  Col  Rccs.,  V,  945-954. 

8  IUd.,  VI,  40-41. 


THE  "JUNTO"  IN  NEW  YORK  55 

pass  any  revenue  bill  until  the  court  bill  had  been  ap- 
proved. Thus  at  one  stroke  the  "Junto"  was  depriving 
the  governor  of  his  appointing  power,  and  also  extending 
its  power  over  the  court.9 

In  the  fall  session  of  the  same  year  the  organization 
again  differed  slightly  in  membership,  but  the  methods 
used  were  very  much  the  same.  In  this  instance  the 
controlling  committee  was  composed  of  Samuel  Swann, 
the  Speaker,  his  brother  John  in  the  Council,  and 
Starkey,  the  Treasurer.  The  chief  issue  was  the  choice 
of  a  new  colonial  agent,  and  the  "Junto"  was  anxious  to 
dictate  the  appointment.  To  guard  against  mishaps  they 
inserted  in  the  tax  bill  a  clause  which  would  give  the 
position  to  their  candidate.  In  the  meantime,  a  new 
Treasurer  was  to  be  appointed,  for  the  northern  district, 
and  the  bill  for  that  purpose  was  kept  back  until  the 
leaders  in  the  House  could  learn  how  the  Council  voted 
on  the  tax  bill,  with  its  agent  rider.  It  was  understood 
that  if  Rieusset,  a  councillor,  voted  favorably,  he  would 
receive  the  office  of  Treasurer  by  way  of  reward.  With 
his  vote  the  tax  bill  passed  the  Council  by  a  bare  majority 
of  one,  whereupon  his  name,  according  to  agreement,  was 
inserted  in  the  bill  for  appointing  the  treasurer.10 

The  power  of  the  "Junto"  in  the  legislature  was  partly 
secured  through  the  control  of  the  standing  committees ; 
in  fact,  they  became  mere  instruments  in  the  hands  of 
the  leaders,  by  means  of  which  their  authority  could  be 

9  N.  C.  Col.  Eecs.,  VI,  243-251.    Dobbs  to  the  Board  of  Trade.    The  Jour- 
nal of  the  House  indicates  that  Dobbs  was  telling  the  truth.    The  committee 
which  framed  the  court  bill  was  composed  of  Dewey,  Child  himself,  and 
Barker,  one  of  the  three  who  hoped  to  profit  by  the  bill.    Dewey  was  appar- 
ently the  lawyer  referred  to  in  Dobbs '  letter,  p.  245,  although  it  is  not  clear 
whether  he  was  one  of  the  "Junto"  or  not.    VI,  367.     Jones,  Barker,  and 
Starkey,  all  members  of  the  "  Junto, "  formed  the  committee  which  framed 
the  tax  bill.    VI,  392,  396. 

10  N.  C.  Col.  Eecs.,  VI,  319-324;  cf.  House  Journal  in  same  volume.     Tax 
bill  brought  in  November  17,  passed  third  reading  November  26;  bill  for 
appointing  the  treasurer  brought  in  November  29,  pp.  479,  497,  502. 


56  DEVELOPMENT  OF  LAWMAKING 

more  conveniently  exercised.  In  1760  the  committees  on 
elections  and  on  grievances  were  composed  of  the  friends 
of  the  "  Junto, "  together  with  a  few  others  who  had  been 
put  on  to  save  appearances,  and  the  proceedings  in  the 
committee  of  grievances  were  kept  secret.11  Moreover, 
the  standing  committees  of  accounts  and  claims  were 
completely  controlled  by  the  House,  and  therefore  by  the 
"Junto."  The  House  usually  appointed  so  many  mem- 
bers to  these  joint  committees  that  the  Council  could  not 
hope  to  get  an  even  representation.12 

This  form  of  government  seems  to  have  been  firmly 
established  in  North  Carolina,  for  as  late  as  1773 
Governor  Martin  complained  of  the  very  same  thing, 
although  in  language  more  uncomplimentary  than  any 
ever  used  by  the  gentle  Dobbs.  He  asserted  that  the 
North  Carolina  House  consisted,  for  the  most  part,  "of 
men  in  the  lowest  state  of  ignorance,  that  are  gulled 
into  absurdities  by  a  few  artful  and  designing  men, 
influenced  by  selfish  and  interested  motives,  who  lead 
them  implicitly  into  their  views  by  representing  every 
salutary  proposition  of  Government  as  injurious  and 
oppressive  .  .  .  ;  the  poor  misguided  herd  renounce  out 
of  the  House  the  sentiments  they  have  but  the  moment 
before  blindly  concurred  in  .  .  ."  Again  he  refers  to 
"the  few  mischievous,  but  too  successful  Demagogues 
who  have  hitherto  governed  the  Assembly.  .  .  . "" 

The  "Junto"  was  the  natural,  inevitable  product  of  an 
extended  controversy  between  representatives  of  two 
different  sources  of  authority.  The  causes  of  this  quar- 
rel are  fairly  evident.  Friction  would  be  sure  to  arise 
between  the  two  powers,  popular  and  royal.  Colonial 
political  leaders  did  not  permit  imperial  problems  to 

11 N.  C.  Col.  Bees.,  VI,  243-251. 

12  Ibid.,  VI,  319-324.  For  the  committee  appointments  see  ibid.,  V,  1043, 
VII,  345. 

is  Ibid.,  IX,  698-699. 


THE  '  '  JUNTO "  IN  NEW  YORK  57 

weigh  very  heavily  upon  their  minds,  and  their  point  of 
view  was  naturally  somewhat  provincial.  With  that 
supreme  self-confidence  so  characteristic  of  the  new 
world  they  felt  that  they  were  perfectly  competent  to 
attend  to  their  own  affairs,  and  they  viewed  with  sus- 
picion the  attempts  of  the  royal  governors  to  obey 
instructions  from  across  the  water.  Their  problems  were 
local,  and  if  their  interests  sometimes  conflicted  with 
imperial  policy,  so  much  the  worse  for  the  empire.  If 
new  administrative  measures  or  new  revenue  laws 
seemed  likely  to  have  an  unfavorable  effect  upon  their 
comfort  or  material  prosperity,  they  could  be  depended 
upon  to  protest  with  vehemence  if  not  with  actual 
violence. 

In  addition  to  those  weightier  causes  of  difference, 
personal  rivalry  and  ambition  played  no  inconsiderable 
part  in  generating  friction.  Then  as  now  aspiring  politi- 
cians were  always  on  the  lookout  for  issues  by  means  of 
which  they  might  rise  to  positions  of  prominence.  To  be 
sure  there  were  opportunities  for  advancement  in  the 
king's  service,  as  the  careers  of  Hutchinson  and  the 
Olivers  in  Massachusetts  clearly  prove.  But  royal 
appointments  were  relatively  scarce,  and  rotation  in 
office  was  not  an  approved  policy  in  those  days.  Jeffer- 
son's disconsolate  complaint  concerning  officers  in  the 
civil  service,  that  few  die  and  none  resign,  would  have 
been  applicable  to  the  colonial  administrative  system. 
Then,  too,  even  the  available  places  were  not  always  open 
to  those  ambitious  but  obscure  young  men  who  happened 
to  be  without  wealth,  social  standing,  and  influence  in 
high  places.  It  was  to  men  of  this  type  that  the  lower 
house  of  the  assembly  particularly  appealed.  The  leader 
of  the  party  opposed  to  the  administration  might  become 
just  as  prominent  and  fully  as  powerful  as  the  governor 


58  DEVELOPMENT  OF  LAWMAKING 

himself,  and  in  addition  he  would  be  entirely  free  from 
any  embarrassing  obligations  to  crown  appointees. 

As  the  champion  of  local  interests,  the  popular  branch 
of  the  assembly  naturally  assumed  the  leadership  in 
opposing  the  governor.  In  a  way  the  aggressive  activity 
of  this  body  was  both  a  cause  and  a  result  of  the  political 
friction.  It  was  constantly  trying  to  restrict  the  field  of 
executive  action,  while  at  the  same  time  it  was  carried  on 
to  positions  of  greater  prominence  by  the  rising  tide  of 
the  struggle.  This  steady  advance  of  the  lower  house  is 
one  of  the  most  important  facts  in  colonial  history  of 
the  eighteenth  century,  as  well  as  one  of  the  important 
causes  of  the  American  Revolution.  By  1760  it  had 
gotten  into  the  habit  of  going  its  own  way,  and  of  doing 
very  much  as  it  pleased,  with  little  or  no  regard  for  the 
advice  or  the  recommendations  sent  down  by  the  execu- 
tive. 

It  seems  fairly  evident  now  that  the  royal  regulations 
and  plans  for  colonial  government  are  very  unsafe  guides 
in  a  study  of  the  systems  actually  in  operation.  Theo- 
retically no  change  had  taken  place  since  the  establish- 
ment of  the  royal  colonies,  but  the  form  alone  was  left. 
In  practice  the  governor  had  really  ceased  to  be  the  head 
of  the  executive  department.  If  his  recommendations 
were  not  treated  with  open  contempt,  they  were  silently 
ignored,  and  his  authority  in  administrative  circles  had 
almost  disappeared.  When  he  vainly  tried  to  oppose  the 
legislature  in  its  attacks  upon  his  prerogative,  he  was 
subjected  to  the  additional  and  intensely  real  incon- 
venience of  going  without  his  salary. 

In  brief,  the  assembly  and  the  governor  fought  it  out, 
to  determine  where  ultimate  authority  resided,  and  the 
assembly  won.  That  meant  a  transfer  of  power  from 
the  representative  of  the  prerogative  to  the  popular 
house.  That  body  itself  was  too  clumsy  to  perform  the 


THE  " JUNTO7'  IN  NEW  YOEK  59 

duties  which  it  had  seized.  Some  device  was  needed 
which  could  guide  it  in  its  deliberations  and  control  it  in 
its  action,  and  at  the  same  time  look  after  matters  of 
finance  and  administration.  These  obligations  were 
assumed  by  the  leaders  of  the  majority,  the  very  ones 
who  were  instrumental  in  building  up  the  power  of  the 
house  at  the  governor's  expense.  As  a  result  the  line 
of  demarcation  between  the  three  branches  of  govern- 
ment almost  disappeared,  and  the  control  of  all  depart- 
ments was  virtually  taken  over  by  a  powerful  legislative 
committee. 

The  gradual  growth  of  this  extra-legal,  unauthorized 
form  of  government  in  the  British  colonies  takes  on  a 
new  significance  when  compared  with  constitutional 
development  in  England.  Similar  forces  produced  the 
Cabinet  in  one  place,  and  the  t '  Junto ' '  in  another.  After 
the  kings  had  been  rendered  powerless,  Parliament,  par- 
ticularly the  House  of  Commons,  found  itself  saddled 
with  new  obligations,  for  the  proper  performance  of 
which  no  machinery  existed.  After  winning  their  vic- 
tories the  leaders  in  the  House  of  Commons  naturally 
assumed  these  new  burdens.  They  had  really  acquired 
control  of  the  government,  and  they  forced  the  king  to 
recognize  that  fact  by  making  them  his  ministers  of 
state. 

In  England  the  system  which  had  been  forced  into 
existence  by  the  constitutional  conflict  was  welded  into 
permanent  form  by  the  peculiar  conditions  of  the  first 
half  of  the  eighteenth  century.  Because  of  his  inability 
to  speak  English  on  the  one  hand,  and  his  gratitude  to 
the  Whigs  on  the  other,  George  I  was  perfectly  willing 
to  make  the  party  chieftains  his  ministers,  and  to  turn 
over  to  them  the  handling  of  governmental  problems 
which  he  could  never  understand.  Even  then  the  Cabi- 
net system  rested  on  nothing  but  a  customary  basis,  and 


60  DEVELOPMENT  OF  LAWMAKING 

it  was  not  until  some  years  after  this  that  the  full  signifi- 
cance of  the  new  regime  was  made  clear. 

In  the  colonies  this  trend  in  the  direction  of  parlia- 
mentary government  had  not  made  as  much  progress  as 
it  had  in  England.  Then  the  Eevolution  altered  the 
course  of  institutional  development,  and  with  one  or  two 
exceptions  put  an  end  to  further  growth  of  this  kind. 
The  change  came  about  largely  because  the  conditions 
responsible  for  the  exaltation  of  the  legislature  at  execu- 
tive expense  had  generally  disappeared.  Eoyal  preroga- 
tive had  no  longer  to  be  reckoned  with,  and  executive  and 
legislature  both  derived  their  authority  from  the  same 
source.  Dangerous  friction  was  therefore  not  likely  to 
arise.  Equally  important  was  the  fact  that  the  revolu- 
tionary leaders  had  even  less  comprehension  of  the  true 
nature  of  colonial  government  than  contemporary  Eng- 
lishmen had  of  the  Cabinet  system.  Americans  were 
inclined  to  look  upon  the  "  Junto*'  as  an  ugly  outgrowth 
of  disreputable  politics,  and  they  justified  its  use  merely 
because  it  seemed  to  be  the  only  available  weapon  of 
defense  against  the  exercise  of  unjust  power.  They 
never  realized  that  as  an  organ  of  government  it  might 
have  tremendous  advantages  simply  because  it  was  a 
perfectly  natural  development. 


CHAPTER  IV 
COMMITTEE  DEVELOPMENT,  1776-1790 

The  years  during  and  immediately  after  the  Revolu- 
tion were  characterized  by  a  really  extraordinary  activ- 
ity in  constitution  making.  By  1789  there  were  in  opera- 
tion the  new  fundamental  laws  drafted  by  eleven  put  of 
thirteen  states,  together  with  the  Federal  Constitution. 
To  this  list  should  be  added  the  Articles  of  Confedera- 
tion, in  effect  up  to  1789.  The  constitutions  are  inter- 
esting, not  for  their  originality,  but  for  the  general  uni- 
formity of  their  provisions.  They  differed  only  slightly 
from  each  other,  and  the  forms  of  government  which  they 
provided  were,  mutatis  mutandis,  very  much  like  tfre 
regular  colonial  systems.  The  Revolution  did  not  cause 
a  general  breaking  away  from  past  governmental  tradi- 
tions. People  had  been  fairly  well  satisfied  with  their 
institutions  as  a  whole,  and  they  fought,  not  to  alter 
those  systems,  but  to  put  an  end  to  what  they  regarded 
as  unjust  meddling  with  them. 

After  taking  steps  to  protect  themselves  against  out- 
side interference  in  their  affairs,  it  is  not  surprising  that 
Americans  fell  back  upon  familiar  precedents  in  making 
the  needed  adjustments  to  changed  conditions.1  It 
should  be  pointed  out,  however,  that  the  new  constitu- 
tions had  far  more  in  common  with  colonial  polity  as  it 

i  For  a  more  detailed  comparison  of  the  colonial  systems  of  govern- 
ment with  the  new  constitutions,  see  Morey,  "The  First  State  Constitu- 
tions, '  >  in  Annals  of  the  American  Academy  of  Political  and  Social  Science, 
IV,  201-232.  "In  their  new  constitutional  enactments  there  was  shown  a 
marked  degree  of  conservatism,  changes  being  made  only  to  the  extent 
necessary  to  bring  the  new  governments  into  harmony  with  republican 
ideas,  without  violating  too  much  the  recognized  traditions  of  the  colonies," 
p.  219. 


62  DEVELOPMENT  OF  LAWMAKING 

was  on  paper  than  with  the  system  of  which  the  "Junto" 
was  the  central  figure.  In  spite  of  a  reputation  for  hard- 
headed  practicality,  and  also  in  spite  of  the  fact  that  both 
professional  politicians  and  ordinary  voters  must  have 
done  considerably  more  thinking  about  the  external  form 
of  their  government  than  they  are  wont  to  do,  it  appears 
that  the  constitution  makers  did  not  take  into  account, 
or  at  least  did  not  analyze  very  carefully,  the  real  signifi- 
cance of  that  striking  discrepancy  between  governmental 
theory  and  practice  before  the  war.  The  rise  of  the 
"Junto"  was  accompanied  by  the  practical  overthrow  of 
the  regular  systems,  and  yet  the  possible  bearing  of  this 
development  upon  the  operation  of  the  new  constitutions 
seems  hardly  to  have  been  considered.  The  "Junto" 
must  have  been  thought  of,  not  as  a  normal,  rational 
institution,  which  had  come  into  existence  to  meet  certain 
needs,  but  rather  as  the  pathological  product  of  a  dis- 
eased body  politic.  Certain  it  is  that  not  one  of  the 
constitutions  was  built  up  around  the  Ermcjjo^  that  a 
powerful  legislative  committee  should  control  all  branches 
of  the  government. 

The  most  important  change  in  the  situation  of  the 
Americans,  that  which  made  the  people,  or  rather  the 
voters,  the  ultimate  authority,  had  been  brought  about 
by  the  war.  As  a  result,  the  powers  of  the  government 
itself  were  no  longer  derived  from  two  different  sources. 
The  executive  department,  formerly  the  mainstay  of  the 
prerogative,  was  set  off  from  the  legislature  in  accord- 
ance with  the  current  theory  of  the  separation  of  powers, 
although  in  many  cases  the  governor  was  subject  to  the 
control  of  the  assembly.2  Then  the  upper  house,  which 
had  formerly  been  a  part  of  the  royal  system,  was  made 

2  Charming,  Hist,  of  U.  S.,  Ill,  459;  in  the  New  England  States  the 
governor  was  elected  by  the  voters;  in  New  York  by  £100  freeholders;  in 
Pennsylvania,  by  the  Council;  elsewhere  by  the  legislature. 


COMMITTEE  DEVELOPMENT  63 

elective.3  Theoretically  the  governors  of  the  states  had 
less  authority  than  their  colonial  predecessors,  but  the 
British  appointees  had  rarely  measured  up  to  the  stature 
of  the  abstract  executive  of  the  charter.  Actually  the 
new  chief  magistrates  enjoyed  just  as  much,  and  in  some 
cases  far  more,  real  power  than  had  been  wielded  in 
earlier  days. 

These  alterations,  which  affected  the  executive  and 
upper  house  so  slightly,  hardly  touched  the  lower  house 
at  all.4  The  nature  and  functions  of  this  particular 
institution  had  been  well  understood  in  colonial  times,  so 
that  few  changes  were  required.  Theoretically  perhaps 
these  popular  branches  had  more  power  than  the  corre- 
sponding bodies  had  enjoyed  on  paper  before  1775; 
actually  they  were  probably  possessed  of  less  real  author- 
ity and  influence  than  those  assemblies  which  governed 
the  colonies  before  the  Revolution.5 

For  a  brief  period  after  the  outbreak  of  the  Eevolution 
the  internal  structure  of  the  legislatures  remained  almost 
without  change.  The  forms  of  procedure  and  organiza- 

s  Morey,  op.  cit.,  pp.  221-223. 

*  Ibid.,  p.  220.  ' '  In  the  organization  of  the  Lower  House,  which  had 
always  been  the  most  republican  branch  of  the  colonial  government,  there 
were  few  changes  to  make,  except  to  give  clearer  definitions  to  its  structure 
and  functions.  The  lower  house,  as  organized  in  the  first  state  Constitu- 
tions, was  thus  a  continuation  of  the  lower  house  which  already  existed 
in  the  colonies.  ..." 

5  The  most  important  change  at  first  was  in  size. 

Before   1776  After  1776 

N.H.  30.  75.   (1776)     90  (1784) 


Mass. 

E.I. 

Conn. 

N.Y. 

N.J. 

Penn. 

Md. 

Va. 

N.C. 

S.C. 

Ga. 


100.  200.   (1776)  200  )1785) 

40.  140. 

No  change. 

30.  60. 

30.  30. 

36.  70.  (1776)     60  (1790) 

41. 

125.  160.   (1790) 

No  change. 

50.  200. 

15.  66.   (1782) 


64  DEVELOPMENT  OF  LAWMAKING 

tion  had  been  worked  out  in  colonial  times  by  the  local 
authorities,  unhindered  by  royal  interference  or  control, 
and  because  these  methods  had  been  generally  satisfac- 
tory, they  were  taken  over  by  the  new  state  legislatures. 
Lawmaking  machinery,  however,  never  stays  put  for  any 
great  length  of  time,  and  even  though  they  withstood  the 
great  upheaval  of  the  Eevolution,  the  legislatures  were 
forced  to  work  out  new  methods  because  of  the  pressure 
of  new  business  and  new  problems.  The  war  had  thrust 
weighty  and  troublesome  burdens  upon  the  assemblies, 
and  the  return  of  peace  served  rather  to  increase  than 
diminish  their  perplexities.  There  were  claims  to  be 
investigated,  accounts  to  be  settled,  taxes  to  be  raised — 
from  a  people  who  had  just  fought  a  long  war  partly  at 
least  to  escape  such  obligations,  and  commercial  arrange- 
ments to  be  agreed  upon  between  the  states  themselves 
and  with  foreign  powers.  In  short,  new  issues  thrust 
themselves  forward,  and  to  give  them  adequate  atten- 
tion the  assemblies  were  forced  to  revise  and  elaborate 
their  procedure.  Not  all  the  legislatures  were  affected 
in  the  same  way,  and  each  worked  out  its  salvation 
according  to  its  own  light,  but  in  spite  of  minor  diver- 
gencies, the  developments  reveal  a  surprising  uniformity. 
The  changes  consisted  partly  in  further  growth  along 
lines  marked  out  before  the  war,  and  partly  in  a  broaden- 
ing of  the  scope  of  committee  activity. 

Probably  the  greatest  defect  in  procedure  in  the  aver- 
age colonial  assembly  had  been  the  want  of  time-saving 
schemes  for  dealing  with  petitions.  Except  in  Virginia 
they  were  customarily  referred  to  small  select  commit- 
tees, and  for  a  few  years  after  the  war  the  old  circuitous 
method  was  continued.  As  time  went  on,  however,  the 
legislatures  began  to  appoint  standing  committees  for 
this  work,  and  in  that  way  the  foundations  of  more 
extensive  standing  committee  systems  were  laid. 


COMMITTEE  DEVELOPMENT  65 

Even  in  New  Hampshire,  where  they  were  almost 
unknown,  standing  committees  were  used  for  a  time  to 
clear  up  the  large  amount  of  legislative  work  left  by  the 
war.  When  fifty  or  more  petitions  were  presented  in  a 
session  of  only  three  weeks  in  length,  a  new  method  of 
handling  them  was  obviously  needed.6  As  early  as  1777 
a  joint  standing  committee  was  appointed  to  consider  all 
petitions  and  applications  for  compensation  from  sol- 
diers who  had  met  with  losses  in  the  war.7  Although 
these  committees  did  not  become  permanent  parts  of  the 
organization,  there  were  times  when  large  amounts  of 
work  necessitated  the  appointment  of  committees  for  a 
single  session.  In  1785,  two  standing  committees  were 
appointed,  one  on  the  petitions  of  sick  and  wounded  sol- 
diers, and  the  other  on  those  of  selectmen  regarding  town 
affairs.8  But  for  some  reason  the  New  Hampshire 
assembly  avoided  such  committees  as  a  matter  of  general 
practice,  and  no  more  on  petitions  were  appointed  before 
1790.  In  1789  several  members  who  were  fully  aware  of 
the  value  of  the  device  made  a  determined  attempt  to 
have  created  a  regular  standing  committee  on  petitions. 
According  to  the  proposal  which  they  made,  all  applica- 
tions of  that  kind  were  to  be  referred  for  consideration 
to  a  joint  committee,  which  should  determine  whether  or 
not  they  were  of  sufficient  importance  to  warrant  fur- 
ther attention.  Rejection  of  a  petition  by  this  committee 
would  prevent  its  receiving  any  more  attention  in  the 
House.  The  measure  was  lost,  by  a  vote  of  thirty  to 
twenty-two,  and  New  Hampshire  continued  to  refer  her 
petitions  to  separate  select  committees.9 

In  Massachusetts,  on  the  other  hand,  where  the  stand- 

«  N.  H.  State  Papers,  XX,  413  et  seq.,  session  from  October  20-November 
11,  1785,  fifty  petitions  were  presented. 
7  N.  H.  Province  Papers,  VIII,  514. 
a  N.  H.  State  Papers,  XX,  344,  346. 
9 Ibid.,  XXI,  672. 


66  DEVELOPMENT  OF  LAWMAKING 

ing  committee  idea  had  taken  root  before  the  war,  a 
fairly  elaborate  system  had  developed  by  1790.  In  1777 
standing  committees  were  appointed  to  examine  muster 
rolls,  accounts,  and  petitions  relating  to  the  sale  of  land.10 
By  1781  the  group  was  enlarged  to  six,  but  the  legislature 
hesitated  to  commit  itself  to  a  permanent  adoption  of  the 
scheme.  In  1785  a  committee  appointed  to  consider  what 
standing  committees  were  needed,  reported  "that  it  was 
not  expedient  to  appoint  any"  for  that  term,  and  the 
House  adopted  the  recommendation,  apparently  without 
discussion.11  The  amount  of  work  had  not  fallen  off,  but 
New  England  in  general  was  skeptical  on  that  subject. 
The  experience  of  getting  along  without  them,  however, 
must  have  furnished  excellent  arguments  for  their  re- 
establishment,  for  in  1788  the  General  Court  of  Massa- 
chusetts had  a  group  of  eight.  Most  of  these  were 
appointed  to  handle  petitions.  There  were  committees 
on  petitions  regarding  the  sale  of  land,  abatement  of 
taxes,  incorporation  of  new  towns,  new  trials,  and  fishing 
in  certain  rivers ;  then  there  was  one  on  accounts,  one  on 
finance,  and  still  another  on  the  encouragement  of  "arts, 
agriculture  and  manufacture s."12  By  this  time  it  was 
becoming  the  regular  custom  to  refer  all  petitions  relat- 
ing to  one  subject  to  a  single  committee. 

Massachusetts  and  New  Hampshire  represent  the  two 
extremes  of  this  phase  of  committee  growth.  Similar 
developments  were  taking  place  at  the  same  time  in 
other  states,  more  extensive  than  that  in  New  Hampshire, 
and  generally  less  so  than  in  Massachusetts.  Sometimes 
there  would  be  two  or  three  such  committees  on  petitions, 

10  Mass.  H.  Journal,  May  30,  June  2,  1777,  pp.  8,  10. 

11  Ibid.,  May  30,  1785,  p.  34. 

12  Ibid.,  May  31,  June  3,  1788,  pp.  31-33,  44.     This  list  remained  prac- 
tically constant  for  the  next  few  years.    In  1789  a  new  one,  on  the  naturali- 
zation of  aliens,  was  created,  June  1,  1789,  p.  49.     These  committees  were 
all  joint. 


COMMITTEE  DEVELOPMENT  67 

sometimes  only  one.  But  whether  the  groups  of  stand- 
ing committees  were  large  or  small,  they  were  all  mani- 
festations of  this  general  movement,  common  through- 
out the  United  States,  toward  a  more  efficient  method  of 
transacting  legislative  business.13 

In  addition  to  this  work  on  petitions,  many  of  the  state 
legislatures  took  upon  themselves  the  task  of  auditing 
and  passing  upon  the  numerous  accounts  presented. 
These  included  bills  of  individuals  for  supplies  furnished 
to  the  state,  or  for  services  performed,  such  as  public 
printing,  caring  for  wounded  soldiers  and  the  states' 
poor,  or  transporting  goods  for  the  army.  In  any  well 
organized  government  such  matters  would  naturally  be 

13  There  were  no  standing  committees  in  Rhode  Island  and  Connecticut. 

In  New  York  the  grand  committees  were  changed  into  small  standing 
committees,  and  to  a  certain  extent  they  became  active  in  this  work  on 
petitions.  N.  Y.  H.  Journal,  August  25,  1779,  p.  6;  March  7,  1786,  p.  71; 
February  12,  1787,  p.  44;  July  7,  1789,  p.  7.  The  committee  on  trade  had 
been  dropped. 

New  Jersey  had  no  standing  committee  on  petitions. 

In  Pennsylvania  no  new  committees  were  appointed  for  this  particular 
kind  of  work,  but  the  committee  on  grievances  handled  petitions.  Pa.  H. 
Journal,  February  26,  1779,  p.  323;  December  12,  1780,  p.  550. 

In  Maryland  the  committee  on  grievances  continued  to  handle  petitions. 
Md.  H.  Journal,  November  13,  1782,  p.  5;  January  12,  1786,  p.  94.  Occa- 
sionally a  standing  committee  on  all  private  petitions  would  be  named; 
op.  cit.,  November  14,  1782,  p.  6.  A  new  committee  on  trade  and  manu- 
factures handled  some  petitions;  op.  cit.,  November  30,  1781,  p.  19;  Novem- 
ber 29,  1785,  p.  27. 

In  Virginia  the  old  committees  were  retained,  but  petitions  regarding 
land  titles  and  probate  matters  were  referred  to  the  committee  on  courts 
of  justice,  so  that  the  committee  on  propositions  and  grievances  was  re- 
lieved of  some  of  its  work.  Va.  H.  of  Del.  Journal,  1785,  pp.  12,  20,  29, 
38,  57. 

In  North  Carolina  a  joint  committee  on  propositions  and  grievances  was 
created  in  1781,  and  was  regularly  appointed  thereafter.  It  handled  nearly 
all  the  general  petitions.  N.  C.  State  Eecs.,  XVII,  797. 

In  South  Carolina  from  1787  on  there  were  some  standing  committees 
on  petitions;  on  grievances,  S.  C.  H.  Journal,  January  29,  1787,  p.  31;  on 
religion,  ibid.,  January  30,  1787,  pp.  35,  36;  on  public  roads,  bridges,  etc., 
ibid.,  January  13,  1791,  p.  18;  on  courts  of  justice,  ibid.,  pp.  18-19. 

In  Georgia  there  was  one  standing  committee  on  petitions.  Ga.  Revol. 
Eecs.,  Ill,  18. 


68  DEVELOPMENT  OF  LAWMAKING 

referred  for  verification  to  officials  of  the  Treasury  de- 
partment, but  in  1780  the  lower  house  preferred  to  keep 
the  closest  possible  oversight  of  all  financial  transactions. 
Such  accounts  were  at  first  referred  to  select  committees, 
as  petitions  had  been,  but  before  long  standing  commit- 
tees were  appointed  to  look  after  the  work.  The  sanc- 
tion of  the  committee  was  necessary  before  an  account 
could  be  paid.  Naturally  the  committee  was  busy,  so 
busy  in  fact  that  arrangements  had  to  be  made  which 
almost  changed  its  character  from  a  legislative  committee 
to  an  administrative  board.  In  Massachusetts  and  New 
Jersey,  for  example,  the  members  of  the  committee 
received  extra  pay  for  their  services,  and  in  New  Jersey 
a  permanent  official  who  was  not  a  member  of  the  House 
at  all  was  appointed  to  serve  on  the  committee.14  While 
not  quite  as  common  as  committees  on  petitions,  com- 
mittees on  accounts  were  to  be  found  in  many  state 
legislatures.15 

Standing  committees  on  petitions  and  accounts  had 
not  been  unknown  in  the  colonial  legislatures,  and  this 
increase  in  their  use  simply  indicates  further  develop- 

i*  Journal  Mass.  H.  of  E.,  May  30,  1778,  p.  11;  June  12,  1778,  p.  26. 
The  members  of  this  committee  received  thirty  shillings  a  day  that  year. 

N.  J.  H.  Journal,  December  12,  1778,  p.  63;  June  12,  1779,  pp.  147-148. 

is  In  New  Hampshire,  after  the  state  government  was  reorganized  in 
1784,  the  committee  on  accounts  was  dropped,  but  there  was  one  before 
that  date;  N.  H.  Prov.  Papers,  VIII,  82-83,  433-434. 

In  Massachusetts  the  committee  was  in  use  up  to  1790;  Mass.  H.  Journal, 
July  24,  1775,  pp.  9,  46;  October  29,  p.  208,  December  1,  pp.  5-6;  June  3, 
1776,  pp.  22;  November  17,  1785,  p.  301;  May  31,  1788,  p.  31. 

In  Connecticut,  the  "Committee  of  the  Pay-Table"  was  apparently  a 
board  rather  than  a  legislative  committee.  Force,  Am.  Archives,  Series  4, 
Vol.  Ill,  p.  1022 ;  Conn.  H.  Journal,  May  27,  1779,  p.  21. 

New  Jersey,  H.  Journal,  September  10,  1776,  p.  6;  October  24,  1787, 
p.  6. 

Pennsylvania,  H.  Journal,  November  21,  1777,  p.  162;  March  16,  1791, 
p.  266. 

Maryland,  no  committee ;  the  work  was  probably  done  by  the  '  *  Intendant 
of  the  Eevenue,"  or  by  the  auditor-general;  H.  Journal,  November  13, 
1782,  p.  6. 


COMMITTEE  DEVELOPMENT  69 

ment  along  familiar  lines.  Their  value  in  the  transac- 
tion of  routine  business  was  so  evident  that  before  long 
they  were  appointed  to  deal  with  some  of  the  new  prob- 
lems left  by  the  war.  Of  all  the  duties  which  were  thrust 
on  the  legislatures,  perhaps  the  most  difficult  as  well  as 
the  most  disagreeable  were  those  connected  with  public 
finance.  Funds  were  imperatively  needed  for  both  civil 
and  military  affairs,  and  the  states  were  poor,  and  short 
of  hard  money.  Politicians  of  this  era  were  obliged  to 
go  slowly  in  order  to  retain  the  good  will  of  their  con- 
stituents. In  their  eagerness  to  get  money  without 
unduly  burdening  the  taxpayers,  the  legislatures  at  first 
resorted  to  the  printing  press,  and  practically  all  the 
states  were  flooded  with  paper  money  that  depreciated 
almost  as  fast  as  it  could  be  issued.  To  extricate  them- 
selves from  the  entanglements  in  which  this  course  had 
involved  them,  the  governments  tried  to  alleviate  the  evil 
by  receiving  old  notes  in  exchange  for  new,  or  by  draw- 
ing up  "depreciation  tables. "  All  attempts,  however, 
to  fix  the  value  of  one  issue  in  terms  of  the  next  were 
fruitless,  because  none  of  them  could  be  kept  at  par  long 
enough  to  serve  as  a  standard. 

After  the  unsatisfactory  nature  of  these  makeshift 
remedies  had  been  clearly  demonstrated,  the  legisla- 
tures were  compelled  to  vote  taxes,  and  to  call  for  their 
payment  in  real  money.  Before  the  war  the  budget  had 
in  general  been  made  up  by  the  governor.  His  recom- 
mendations would  be  submitted  to  the  assembly,  and 
after  discussion  in  committee  of  the  whole  house,  taxes 
would  be  voted.  But  after  a  few  years  on  a  depreciated 

North  Carolina,  standing  committee  up  to  1779;  after  that  date  the 
work  was  done  by  auditors;  N.  C.  State  Bees.,  XIII,  915,  916;  XVI,  21; 
XIX,  3. 

South  Carolina,  the  committee  was  used  in  1784,  and  thereafter.  S.  C. 
H.  Journal,  February  24,  1784,  p.  172;  February  25,  1786,  p.  130;  February 
2,  1787,  p.  49. 

Georgia,  Bevol  Bees.,  Ill,  36;  72-73. 


70  DEVELOPMENT  OF  LAWMAKING 

paper  basis,  the  financial  affairs  of  the  states  were  so 
badly  involved  that  no  such  simple  method  would  answer. 
Careful  investigations  and  estimates  had  to  be  made 
before  the  House  could  act,  and  in  order  to  get  the  neces- 
sary information  committees  were  appointed.  In  sev- 
eral of  the  assemblies  by  1790  there  were  to  be  found 
standing  committees  on  ways  and  means,  on  finance,  or 
on  revenue. 

These  predecessors  of  the  modern  committees  of  ways 
and  means  were  coming  into  general  use  between  1776 
and  1790.  Their  evolution  is  both  interesting  and  impor- 
tant, because  it  shows  how  the  institution  could  be 
adapted  to  new  needs.  Because  there  were  no  colonial 
precedents  to  serve  as  guides,  the  legislatures  tried  out 
numerous  experiments,  and  as  a  result  the  records  reveal 
much  uncertainty  and  no  little  inconsistency  with  refer- 
ence to  the  proper  relations  between  committee  and 
house.  For  example,  the  assembly  would  appoint  a  com- 
mittee to  "  consider  so  far  as  is  necessary  all  money 
matters, ' '  and  to  ' l  report  all  such  measures  as  they  may 
think  expedient  to  be  adopted  for  providing  for  the 
exigencies  of  Government,  and  for  restoring  Public 
Credit, "  and  then  name  a  second  committee  to  prepare 
a  tax  bill,  and  a  third  to  consider  the  "  expediency "  of 
borrowing  money  and  to  report  any  other  feasible 
schemes  for  supplying  the  treasury.16  It  was  only  by 
appointing  various  committees  and  assigning  to  them 
sometimes  one  kind  of  work  and  sometimes  several  that 
the  ways  and  means  committee  was  finally  developed. 
It  was  the  result  of  experimentation,  more  or  less  uncon- 
scious, which  lasted  over  a  period  of  several  years. 

In  Massachusetts  financial  affairs  were  at  first  re- 

16  Mass.  H.  Journal,  June  4,  22,  July  1,  1782,  pp.  42,  47,  121,  148-149. 

There  was  the  same  uncertainty  in  New  York;  H.  Journal,  September  7, 
18,  1780,  pp.  7,  25;  the  House  first  appointed  a  committee  of  ways  and 
means,  and  then  a  committee  to  consider  means  for  supplying  the  treasury. 


COMMITTEE  DEVELOPMENT  71 

ferred  to  select  committees,  and  it  was  not  until  after 
the  reorganization  of  the  government  in  1780  that  the 
first  standing  committee  of  ways  and  means  appeared. 
In  the  first  session  held  under  the  new  state  constitution, 
a  committee  of  nine  was  appointed  by  ballot  to  "  devise 
Ways  and  Means "  to  supply  the  treasury,  for  military 
purposes  and  contingent  expenses.17  In  order  that  the 
committee  might  have  at  its  disposal  all  available 
information,  papers  from  Congress  regarding  financial 
matters  were  referred  to  it.18 

The  very  first  reports  submitted  by  the  committee 
reveal  the  fact  that  its  appointment  was  one  manifes- 
tation of  the  spirit  of  monetary  reform.  It  attacked  the 
root  of  the  paper  money  problem  at  once,  and  urged  the 
repeal  of  every  act  which  made  bills  of  credit  legal 
tender.  Later  it  proposed  that  one-seventh  of  the  i '  new ' ' 
money  be  burned.19  After  working  through  the  December 
recess,  the  committee  was  ready  with  more  recommen- 
dations. In  order  to  make  the  reform  as  effective  as 
possible,  it  urged  first,  a  complete  reorganization  of  the 
treasury  department,  and  then  the  enactment  of  a  law 
to  insure  a  punctual  collection  of  taxes.20  Then,  coming 
down  to  the  actual  task  of  raising  money,  it  laid  the 
budget  before  the  House,  so  that  the  members  might 
have  before  them  a  concise  summary  of  the  amounts 
needed  for  both  civil  and  military  affairs.21  In  a  few 
additional  reports  the  committee  suggested  various 
methods  of  raising  money,  and  gave  estimates  of  the 
probable  sums  that  might  be  realized  from  these  sources, 
such  as,  for  example,  imposts,  excise,  the  sale  of  public 
lands,  and  what  not.  Among  other  things  a  lottery  was 

17  Mass.  H.  Journal,  November  22,  1780,  p.  126. 

is  Hid.,  November  23,  1780,  January  3,  1781,  pp.  133,  268. 

•uibid.,  December  2,  1780,  January  15,  1791,  pp.  172-173,  214. 

20  Ibid.,  January  26,  1781,  pp.  254-255. 

21  Ibid.,  January  9,  1781,  p.  196. 


72  DEVELOPMENT  OF  LAWMAKING 

recommended,  and  also  a  loan  of  £400,000  to  complete 
the  total  needed.22  Of  the  bills  which  were  drafted  to 
carry  some  of  these  measures  into  effect,  the  one  for  the 
excise  and  impost  taxes  was  framed  by  a  special  select 
committee,  although  the  rates  adopted  were  those  recom- 
mended by  the  committee  of  ways  and  means ;  the  general 
tax  bill  was  drawn  by  the  standing  committee  itself.23 

Such  proposals  involved  radical  reforms  in  the  whole 
department  of  finance,  and  apparently  the  committee 
felt  that  its  plans  would  be  looked  upon  with  disfavor. 
Feeling  called  upon  to  justify  themselves  in  the  eyes 
of  their  constituents,  the  members  drew  up  an  address 
to  the  people  at  large,  describing  the  actual  state  of 
affairs,  and  setting  forth  the  necessity  of  some  such 
action  as  that  recommended.2*  Evidently  any  measure 
calling  for  the  raising  and  spending  of  hard  money 
would  be  far  from  acceptable  to  the  ardent  lovers  of 
paper. 

In  thus  attempting  to  restore  order  in  the  Treasury 
department,  the  House  of  Representatives  in  Massa- 
chusetts gave  this  first  committee  of  ways  and  means 
authority  to  make  appropriations  as  well  as  to  raise 
money,  thereby,  bringing  about  some  degree  of  unity 
in  the  financial  transactions  of  the  state.25  This  method, 
so  different  from  the  modern  haphazard  manner  of 
raising  and  spending  money  in  the  national  House,  was 
adopted  by  the  first  federal  committee  of  ways  and 
means,  and  was  not  abandoned  until  1861,  when  the  first 
committee  on  appropriations  was  created.  Thus  in  1781 
in  Massachusetts  the  work  of  making  up  the  budget, 
raising  money  to  meet  those  demands,  preparing  the  tax 

22  Mass.  H.  Journal,  January  18,  19,  26,  1781,  pp.  230,  233,  254-255. 
28  Ibid.,  January  19,  23,  26,  1781,  pp.  232,  242,  254. 

24  Ibid.,  January  26,  1781,  pp.  254-255. 

25  Ibid.,  January  26,  1781,  pp.  254-255. 


COMMITTEE  DEVELOPMENT  73 

bill,    and    suggesting    definite    appropriations    was    all 
attended  to  by  a  single  committee. 

During  the  next  year,  however,  instead  of  one  standing 
committee,  there  was  the  usual  series  of  select  com- 
mittees, none  of  which  had  any  direct  connection  with 
any  other.26  In  1782,  although  a  standing  committee  on 
finance  was  appointed,  much  of  the  work  that  should 
have  been  referred  to  it  was  done  by  select  committees. 
The  standing  committee  made  general  suggestions  re- 
garding the  treasury  department,  looking  toward  reform, 
and  it  made  up  the  budget,  but  another  committee  framed 
the  tax  bill,  and  appropriations  were  made  by  the  House 
itself.27  For  the  next  six  years  there  was  no  standing 
committee  for  financial  work.  In  1788,  however,  a  com- 
mittee on  finance  was  appointed,  and  the  next  year  a 
committee  on  revenue.  From  that  time  on  there  seems 
to  have  been  some  sort  of  a  standing  committee  for 
finance  every  year.  In  1789,  the  committee  on  revenue 
was  appointed  to  inquire  into  government  expenditures, 
in  order  to  see  whether  or  not  any  reductions  could  be 
made;  to  inquire  into  the  amounts  of  taxes  outstanding, 
and  of  all  other  debts  due  the  state;  to  find  out  what 
changes  in  the  revenue  laws  of  the  state  were  made 
imperative  by  the  new  federal  tariff  law ;  to  inquire  into 
the  state  of  the  treasury  department  and  into  all  state 
offices  which  were  concerned  with  state  finance;  to  call 
on  state  officials  for  papers  needed  to  furnish  informa- 
tion; to  devise  means  for  increasing  the  public  revenue, 
and  to  suggest  measures  for  establishing  public  credit 
on  a  firm  basis.28  And  yet,  in  spite  of  this  formidable 

26  Mass.  H.  Journal,  September  13,  18,  21,  1781,  pp.  189,  212,  231,  232. 

27  ibid.,  June  4,  7,  8,  11,  22,  July  1,  September  30,  1782,  pp.  42,  47,  54, 
79,  121,  148-149,  215.     A  select  committee  was  appointed  to  prepare  the 
tax  bill,  another  to  consider  the  expediency  of  borrowing  money,  and  to 
consider  and  report  any  other  measures  for  supplying  the  treasury,   and 
still  another  to  make  up  the  list  of  appropriations  for  the  civil  list  and 
contingent  expenses. 


74  DEVELOPMENT  OF  LAWMAKING 

array  of  work  laid  before  the  standing  committee,  select 
committees  were  appointed  to  revise  the  excise  laws,  to 
consider  the  "expediency  of  issuing"  a  tax,  the  amount 
to  be  raised,  the  proportion  to  be  levied  in  specie,  to 
suggest  the  amount  of  the  poll  tax,  to  bring  in  the  tax 
bill,  and  finally  to  consider  ways  and  means  for  paying 
the  civil  list.29  Not  once  again  during  the  whole  period 
was  there  anything  like  real  unity  in  the  work,  as  there 
had  been  in  1780  and  1781.  The  committee  was  in 
process  of  development,  and  it  took  shape  slowly. 

In  Pennsylvania  there  was  a  like  period  of  experi- 
mentation, but  by  1790  the  legislators  seemed  to  have  a 
very  clear  idea  of  what  their  committee  was  expected 
to  do.  Its  reports  included  a  detailed  statement  of  the 
condition  of  the  treasury,  with  the  amounts  on  hand, 
those  likely  to  be  received,  and  the  budget  for  the  year, 
carefully  figured  out  to  shillings  and  pence.  A  second 
part  of  the  report  advocated  both  foreign  and  domestic 
loans,  and  urged  that  more  paper  be  issued.  Finally,  it 
made  general  recommendations  regarding  the  appro- 
priation of  the  money  raised  by  taxes  and  the  domestic 
loan,  suggesting  that  it  be  used  to  pay  running  expenses, 
warrants  drawn  by  the  late  executive  council,  and 
warrants  drawn  by  the  governor  before  that  session. 
After  some  changes  had  been  made  in  committee  of  the 
whole,  a  select  committee  was  appointed  to  bring  in  a 
bill  for  carrying  the  provisions  into  effect.80  Thus  in 
Pennsylvania  the  attempts  to  bring  order  out  of  financial 
chaos  resulted  in  the  establishment  of  a  systematic, 
businesslike  method  of  handling  the  problems  of  revenue 
and  expenditure. 

28  Mass.  H.  Journal,  June  3,  1789,  p.  41. 

29  Ibid.,  June  22,  1789,  p.  125;  January  19,  28,  February  18,  26,  1790, 
pp.  175,  204,  261,  287. 

so  pa.  H.  Journal,  December  30,  1790,  p.  54 ;  January  11,  February  8, 
23,  26,  March  1,  1791,  pp.  84-85,  162,  215,  226-231. 


COMMITTEE  DEVELOPMENT  75 

Another  good  example  of  a  well-developed  committee 
of  ways  and  means  was  to  be  found  in  South  Carolina. 
From  1783  to  1790  the  committee  was  regularly  used, 
with  less  uncertainty  and  more  consistency  than  there 
had  been  in  Massachusetts.  In  addition  to  making 
general  recommendations  regarding  the  management  of 
finance,  it  made  up  the  budget,  proposed  new  taxes, 
framed  tax  bills,  and  suggested  appropriations.31 

In  North  Carolina,  too,  from  1784  to  1790,  there  was 
an  important  joint  committee  on  finance  or  on  revenue, 
the  duty  of  which  was  to  collect  and  lay  before  the 
assembly  information  regarding  public  finance.  It  made 
up  the  budget,  but  revenue  bills  were  framed  by  the 
all-important  committee  on  public  bills.82  After  its 
appointment,  the  committee  on  finance  divided  itself  into 
several  subcommittees,  to  each  of  which  was  assigned 
a  definite  share  of  the  work.  One  division,  for  example, 
would  be  concerned  with  the  condition  of  the  revenue, 
and  with  the  budget;  another  would  look  up  and  report 
how  the  public  funds  had  been  used  during  the  preced- 
ing year,  while  another  would  report  on  the  condition 
of  the  foreign  debt,  and  so  on.  Sometimes  there  were  as 
many  as  nine  of  these  subcommittees.33 

si  8.  C.  H.  Journal,  January  25,  February  18,  22,  1783,  pp.  40,  174- 
175,  202,  February  17,  25,  1784,  pp.  125,  175;  February  18,  1785,  pp. 
151-152;  February  11,  1786,  pp.  43-44;  February  25,  1786,  pp.  121-125; 
January  25,  1788,  p.  64. 

32  In  1786,  when  the  committee  on  public  bills  was  temporarily  deprived 
of  some  of  its  functions,  the  committee  on  finance  did  frame  the  tax  bill; 
N.  C.  State  Recs.,  XVIII,  279,  December  6,  1786;  ordinarily  the  committee 
on  public  bills  did  the  work;  XX,  491;  XXI,  214. 

For  reports  of  this  committee  on  finance,  see  N.  C.  State  Recs.,  XVIII, 
280-282;  XXI,  141-147. 

ss  N.  C.  State  Recs.,  XVIII,  282-283 ;  XXI,  634. 

In  Virginia  there  was  a  standing  committee  of  ways  and  means  for 
two  years  only,  1779-1780;  it  suggested  methods  of  raising  money,  and 
framed  the  revenue  bills.  Va.  H.  of  D.  Journal,  November  9,  December 
10,  15,  1779,  pp.  47,  83,  90-91.  After  1781,  financial  measures  were  brought 
up  and  discussed  in  the  committee  of  the  whole  house. 

In  New  York,  a  standing  committee  of  ways  and  means  was  regularly 


76  DEVELOPMENT  OF  LAWMAKING 

In  addition  to  the  committees  for  handling  petitions, 
accounts,  and  finance,  there  were  others  that  fore- 
shadowed the  later  custom  of  appointing  standing 
committees  on  matters  of  general  importance  in  the 
state.  After  the  war  the  legislatures  had  time  to  devote 
their  attention  to  internal  affairs,  such  as  manufactures, 
roads,  or  agriculture,  and  their  increasing  interest  in  the 
general  welfare  is  indicated  by  the  creation  of  new  com- 
mittees. In  Massachusetts,  for  example,  in  1788  and 
thereafter,  there  was  a  standing  committee  for  the 
encouragement  of  arts,  agriculture,  and  manufactures.34 
Similarly  in  Maryland,  a  new  committee  on  trade  and 
manufactures  was  appointed,  whose  duty  it  was  to 
examine  proposals  for  the  establishment  of  manufac- 
tures, and  to  consider  and  report  the  best  method  of 
starting  manufactures,  and  of  promoting  trade  and 
commerce.35  In  Virginia  the  committee  on  trade  had 
been  allowed  practically  to  die  out  during  the  war,  but 
in  1783  it  was  reestablished  under  the  name  of  the  com- 
mittee on  commerce.36  It  was  ordered  to  take  into 
consideration  all  matters  relating  to  "  trade,  manufac- 
tures, and  commerce,"  and  to  suggest  "occasionally 
such  improvements -as  in  their  judgment  may  be  made" 

appointed,  but  it  did  little  work.  In  1779  it  drew  up  the  tax  bill,  and  also 
the  general  appropriation  bill,  but  other  important  financial  work  was 
turned  over  to  select  committees.  N.  T.  H.  Journal,  August  25,  27,  Septem- 
ber 21,  October  18,  1779,  January  27,  1780,  pp.  7,  10,  32,  74,  88.  In  1787 
the  committee  of  ways  and  means  drew  up  the  annual  tax  bill,  but  in  other 
sessions,  although  it  was  regularly  appointed,  select  committees  did  the 
work. 

In  New  Hampshire,  Ehode  Island,  Connecticut,  New  Jersey,  and  Georgia 
there  was  no  standing  committee  on  ways  and  means  or  on  finance. 

a*  Mass.  H.  Journal,  May  31,  1788,  pp.  31-33;  June  2,  1790,  p.  46. 

35  Md.  H.  Journal,  May  6,  1783,  p.  2;  November  15,  1785,  p.  2. 

36  During  the  war  the  committee  on  trade  had  almost  nothing  to  do,  and 
the  work  formerly  done  by  the  committee  on  claims  was  turned  over  to  it. 
In  1783  the  name  of  the  committee  on  trade  was  formally  changed  to  that 
of   the   committee   on   public   claims,   and   a   committee   on   commerce   was 
appointed.     Va.   H.  of  D.  Journal,  November   27,   1779,  p.   73;   May   19, 
1783,  p.  12. 


COMMITTEE  DEVELOPMENT  77 

with  reference  to  these  interests.  In  North  Carolina  for 
two  years  there  was  a  standing  committee  on  Indian 
affairs,  to  which  was  referred  business  relating  to  the 
western  frontier,  but  it  was  dropped  after  the  committee 
on  public  bills  took  charge  of  all  public  questions  of  that 
kind.37  In  South  Carolina,  in  1791,  a  standing  committee 
on  "Public  Roads,  Bridges,  Causeways,  and  Ferries " 
was  created,  to  which  petitions  dealing  with  such  matters 
might  be  referred.38 

Along  with  this  increase  in  the  number  and  variety 
of  standing  committees  there  was  a  corresponding 
enlargement  of  the  field  of  their  activity.  During  the 
colonial  period  the  House  of  Burgesses  of  Virginia  was 
the  only  assembly  in  which  bills  were  drafted  and 
amended  by  standing  committees.  After  1776  that 
practice  was  continued  there,  and  it  was  also  taken  up 
in  some  of  the  other  states,  particularly  in  Massachu- 
setts, New  York,  Pennsylvania,  and  the  Carolinas.  As 
the  standing  committees  increased  in  number  it  was  only 
natural  that  they  should  be  given  work  which  dealt  with 
the  actual  processes  of  lawmaking.39 

The  most  interesting  and  unique  change  in  any 
assembly  took  place  in  North  Carolina,  where  a  peculiar 
system  developed,  the  outgrowth  partly  of  the  regular 
committees  in  use  during  the  colonial  period,  and  partly 
of  the  i  i  Junto. "  The  authority  exercised  by  the  in- 
formal committee  of  party  leaders  was  transferred  to 
a  regular  standing  committee,  on  public  bills.  The 
members  of  this  new  committee  were  the  leaders  of  the 
legislature,  and  they  formulated  the  policy  to  be  pursued, 

37  N.  C.  State  Sees.,  XXI,  12,  211. 

ss  8.  C.  H.  Journal,  January  13,  1791,  p.  18. 

39  The  following  are  not  isolated  cases,  but  examples.  Mass.  H.  Journal, 
June  5,  1782,  p.  54;  June  20,  1789,  p.  121.  N.  Y.  H.  Journal,  February  6, 
1781,  p.  11;  January  29,  1784,  p.  20.  Pa.  H.  Journal,  February  15,  1781, 
p.  570;  January  11,  1791,  pp.  84-85.  N.  C.  State  Eecs.,  XVIII,  279;  XXI, 
45.  8.  C.  H.  Journal,  February  6,  1784,  pp.  72-73. 


78  DEVELOPMENT  OF  LAWMAKING 

and  determined  what  action  should  be  taken  on  important 
matters.  Like  the  English  Cabinet,  it  was  evidently  a 
system  of  "  machine "  rule  which  finally  received  formal 
sanction.40 

This  period  between  1776  and  1790  rather  than  before 
is  the  time  when  the  standing  committee  really  came  into 
extensive  use.  Legislators  in  several  of  the  states  had 
become  familiar  with  the  possibilities  of  the  institution, 
and  as  they  began  to  appreciate  its  value,  they  enlarged 
their  groups  of  committees  to  meet  new  needs.  To  be 
sure  in  some  of  the  states  very  few  changes  took  place. 
New  Hampshire,  Ehode  Island,  and  Connecticut  had  no 
standing  committees  in  1790,  and  the  legislatures  in  New 
Jersey,  Maryland,  and  Georgia  were  not  very  well 
supplied.  Surprising  as  it  may  seem,  the  system  in 
Virginia  in  1789  was  practically  the  same  as  it  had  been 
in  1769.  The  standing  committees  had  not  increased  in 
number,  and  there  was  no  important  variation  in  the 
kind  of  work  done.  Institutions  in  Virginia  were  the 
product  of  a  long  period  of  slow,  steady  development, 
and  changes  came  slowly.  The  greatest  increase  in  the 
number  of  committees  took  place  in  Massachusetts  and 
in  South  Carolina.  In  1775  Massachusetts  had  only  two 
standing  committees,  while  in  1789  she  had  eight,  and 
in  South  Carolina  between  1776  and  1791  the  number 
increased  from  one  to  six.41 

40  Because  of  its  peculiar  relation  to   constitutional  history,  this   com- 
mittee on  public  bills  will  receive  fuller  treatment  in  the  next  chapter. 

41  Mass.  H.  Journal,  July  24,  1775,  p.  9;  September  21,  1775,  p.  110; 
May  29,  June  2,  1789,  pp.  21,  35-36,  39,  49.     The  eight  were:  committee 
on  accounts,  on  petitions  for  the  abatement  of  taxes,  on  petitions  for  the 
encouragement  of   agriculture  and  manufactures,   on   applications   for  the 
incorporation  of  towns,  on  applications  for  new  trials,  on  petitions  regard- 
ing the  sale  of  real  estate,  on  petitions  for  naturalization,  and  on  finance. 

S.  C.  H.  Journal,  September  18,  1776,  p.  7,  committee  on  privileges  and 
elections;  January  11,  12,  13,  18,  1791,  pp.  7,  15,  18-19,  59,  committees  on 
privileges  and  elections,  accounts,  religion,  public  roads,  bridges,  etc.,  courts 
of  justice,  ways  and  means. 


CHAPTER  V 

COMMITTEES     ON     LEGISLATION,     AND     THE 

COMMITTEE    ON  PUBLIC    BILLS    IN 

NORTH  CAROLINA 

Although  it  brought  about  practically  no  direct  change 
in  the  functions  or  strictly  formal  organization  of  the 
lower  house,  the  Revolution  did  affect  that  extra- 
constitutional  development  which  had  acquired  so  much 
importance  during  the  later  colonial  period.  The  execu- 
tive and  legislature  no  longer  represented  two  opposite 
political  systems;  on  the  contrary  both  looked  to  the 
voters  as  the  ultimate  authority,  and  ordinarily  both 
the  governor  and  the  majority  in  the  assembly  were  of 
the  same  political  faith.  As  a  result  constant  friction 
gave  way  to  a  more  or  less  friendly  cooperation,  and 
these  two  branches  of  the  government  were  free  to  devote 
themselves  to  their  proper  duties.  The  strife  of  the 
colonial  period  had  given  to  the  legislature  that  highly 
centralized  type  of  organization  of  which  the  "Junto" 
was  the  characteristic  feature.  After  1776,  when  the  rep- 
resentatives of  the  voters  were  no  longer  compelled  to 
spend  the  greater  part  of  their  time  in  a  controversy 
with  the  governor,  party  machinery  played  a  somewhat 
less  conspicuous  role  than  before.  The  primary  need 
of  all  the  legislatures  was  a  system  that  would  facilitate 
the  transaction  of  ordinary  business,  of  which,  because 
of  the  war,  there  was  an  unusually  large  amount.  Thus 
the  colonial  "Junto"  had  generally  dropped  out  of  sight 


80  DEVELOPMENT  OF  LAWMAKING 

along  with  the  conditions  responsible  for  its  origin,  and 
in  its  place  there  appeared  a  collection  of  standing 
committees.  Because  of  a  combination  of  circumstances, 
therefore,  which  found  expression  partly  in  the  new 
state  constitutions  based  on  the  theory  of  the  sepa- 
ration of  powers,  and  partly  in  the  committee  form 
of  legislative  organization,  the  tendency  toward  parlia- 
mentary government,  with  one  important  exception, 
practically  disappeared. 

In  order  to  put  the  system  on  a  surer  footing,  it  would 
have  been  necessary  to  change  the  "  Junto "  from  an 
unofficial,  self -constituted  body  into  a  regular  standing 
committee,  and  to  confer  upon  it  power  to  control 
all  departments  of  the  government.  In  North  Carolina 
such  a  committee  actually  came  into  existence,  not  as 
the  result  of  any  provision  in  the  Constitution,  but  rather 
as  a  product  of  legislative  procedure.  This  committee 
on  public  bills,  or  "  Grand  Committee, "  as  it  was  some- 
times called,  was  composed  of  the  leading  members  in 
both  chambers  of  the  assembly.  It  resembled  the  British 
Cabinet  in  the  extent  of  its  authority  over  the  govern- 
ment in  general,  and  in  its  influence  in  the  legis- 
lature in  particular;  it  differed  from  that  body  chiefly 
in  that  its  members  were  not  made  heads  of  executive 
departments. 

Although  this  committee  did  not  become  prominent 
until  after  1780,  it  first  appeared  in  North  Carolina  in 
1776,  and  at  that  time  it  was  very  much  like  similar 
committees  that  were  being  used  in  New  Hampshire, 
Massachusetts,  Pennsylvania,  South  Carolina,  and 
Georgia.  For  want  of  a  better  name  they  may  be  called 
committees  on  legislation.  They  were  not  standing,  but 
select,  nevertheless  they  had  prescribed  duties  to  per- 
form, so  they  may  be  considered  parts  of  the  systems. 


COMMITTEES  ON  LEGISLATION  81 

In  some  cases  they  were  joint  committees,  in  others  they 
were  composed  of  House  members  only.1 

According  to  the  resolutions  adopted  at  the  time  of 
their  appointment,  these  committees  on  legislation  were 
expected  to  draw  up  and  lay  before  the  assembly  an 
outline  of  the  work  to  be  done  during  the  session.  They 
would  make  out  lists  of  bills  which  in  their  opinion  ought 
to  become  laws,  and  also  call  to  the  attention  of  the 
legislature  other  matters  concerning  which  action  was 
desirable.  The  duties  of  the  committees  were  practi- 
cally the  same  in  all  states.  In  New  Hampshire,  for 
instance,  the  committee  was  ordered  "to  examine  and 
see  what  Laws  of  a  public  nature  would  be  beneficial  to 
be  passed. "  In  Massachusetts,  it  was  appointed  to 
consider  and  report  on  the  business  which  ought  to  come 
before  the  General  Court,  and  in  Pennsylvania  to  report 
to  the  House  "what  laws  it  will  be  most  immediately 
necessary  should  be  passed  at  this  session."  In  fact, 
the  order  of  any  one  assembly  to  its  legislation  committee 
might  equally  well  have  applied  to  all.2 

The  real  nature  of  the  committee  is  to  be  seen  most 
clearly  in  the  reports  which  it  submitted,  and  here  again 
the  close  resemblance  of  the  committees  in  the  various 
states  stands  out  plainly.  The  report  would  recommend 
certain  new  laws,  perhaps  to  enforce  the  payment  of 

iN.  H.  Prov.  Papers,  H.  Journal,  VII,  69,  June  13,  1765,  1st  appoint- 
ment. Ibid.,  VIII,  81-82,  March  7,  1776.  Joint  after  1776.  Mass.  H. 
Journal,  June  24,  1777,  p.  36.  Ibid.,  June  17,  1778,  p.  30.  Ibid.,  October 
28,  178,0,  p.  25.  Joint  after  1780.  Pa.  H.  Journal,  May  22,  1777,  p.  133. 
Appointed  only  once.  House  only.  N.  C.  St.  Sees.,  H.  Journal,  XII,  289, 
November  22,  1777.  Joint.  8.  C.  H.  Journal,  March  29,  1776.  House  only. 
Ga.  Eevol.  Eecs.,  H.  Journal,  III,  35-36,  January  2,  1782.  House  only. 

In  New  York,  throughout  the  whole  period,  1750-1790,  a  committee  was 
regularly  appointed  to  report  to  the  House  temporary  laws  which  needed 
to  be  renewed,  and  also  to  suggest  any  new  laws  that  might  be  needed. 
But  the  committee  confined  itself  to  reporting  laws  which  needed  renewal, 
and  only  once  did  it  suggest  a  new  one.  N.  T.  H.  Journal,  January  7,  1773, 
p.  7. 

2  References  as  in  note  1. 


82  DEVELOPMENT  OF  LAWMAKING 

taxes,  to  regulate  the  militia,  or  to  reorganize  the 
judiciary.  Then,  in  addition,  the  committee  would  call 
the  attention  of  the  assembly  to  other  necessary  work, 
such  as  issuing  commissions  to  certain  judges,  drawing 
up  general  orders  for  troops,  disposing  of  the  gun- 
powder owned  by  the  state,  or  selling  a  ship  which  had 
been  employed  in  naval  service.3  In  all  cases  the  report 
of  the  committee  became  the  program  for  the  more 
important  work  of  the  session.  Because  of  the  fact  that 
it  proposed  the  enactment  of  new  laws,  it  was  of  a 
different  nature  from  the  well-known  "steering  com- 
mittee, "  which  simply  arranges  in  order  work  already 
before  the  House,  so  that  important  measures  will  not 
be  neglected.* 

In  the  colonial  period  the  governor  regularly  made 
suggestions  with  reference  to  new  legislation,  and  this 
custom  was  continued  after  the  state  governments  were 
organized.  In  view  of  the  fact  that  the  governor  was 
no  longer  the  representative  of  an  outside  power,  it 
would  naturally  be  supposed  that  the  committee  on  legis- 
lation would  cooperate  with  him  in  this  work,  or  at  least 
that  his  speech  or  message  would  be  referred  to  the 
committee.  Cooperation  may  or  may  not  have  taken 
place,  but  in  only  two  states,  New  Hampshire  and  North 
Carolina,  was  the  message  regularly  referred  to  the 
committee  on  legislation.5  Elsewhere,  with  some  excep- 

3JV.  H.  Prov.  Papers,  H.  Journal,  VIII,  133-134,  June  6,  1776.  Mass. 
H.  Journal,  May  30,  1783,  p.  23.  This  is  the  first  report  entered  in  the 
Journal,  although  the  committee  had  been  regularly  appointed  since  1777. 
S.  C.  H.  Journal,  August  1,  1783,  p.  11.  Ga.  Revol.  Eecs.,  Ill,  157-158, 
July  28,  1782;  204-206,  January  11,  1783. 

4  The  ' '  steering  committee ' '  is  not  a  modern  institution  by  any  means. 
In  1571  a  committee  was  appointed  "for  appointing  such  bills  for  the 
common-weal  as  shall  be  first  proceeded  in,  and  preferred  before  the 
residue  ..."  Commons  Journal,  I,  86,  April  16,  1571;  Jameson,  249. 

s  N.  H.  St.  Papers,  XX,  413,  October  20,  1785.  In  one  ease  the  message 
went  to  a  separate  committee,  ibid.,  XXI,  597-598.  After  1781,  in  North 
Carolina,  the  message  was  always  referred  to  the  committee.  N.  C.  St. 
Bees.,  XVII,  638-639,  January  29,  1781. 


COMMITTEES  ON  LEGISLATION  83 

tions  in  Massachusetts,  the  governor's  communications 
were  placed  in  the  hands  of  separate  select  committees, 
or  given  over  to  the  committee  of  the  whole  house.  The 
recommendations  of  the  governor  bore  directly  on  the 
work  of  the  committee  on  legislation,  and  it  seems 
strange  that  a  separate  committee  should  have  been 
appointed  to  report  on  his  message.  Evidently  the 
different  parties  concerned  were  more  interested  in 
receiving  suggestions  from  all  possible  sources  than  in 
a  coordination  of  effort.  The  legislature  looked  to  the 
governor  for  advice,  but  it  seems  to  have  felt  that  he 
might  neglect  certain  important  matters.  To  guard 
against  omissions,  the  members  supplemented  the 
governor's  message  with  a  report  of  one  of  their  own 
committees. 

The  practically  simultaneous  appearance  of  these 
committees  indicates  common  conditions  in  the  legis- 
latures of  widely  separated  states.  In  New  Hampshire 
the  committee  was  in  use  during  the  decade  before  the 
Revolution ;  but  in  the  other  five  states  where  it  appeared 
it  came  into  existence  sometime  between  1775  and  the 
end  of  the  war.  Apparently  the  idea  came  from  the 
colonial  "Junto."  For  several  years  the  assemblies  had 
entrusted  the  task  of  arranging  their  business  and 
guiding  their  activities  to  a  few  prominent  members. 
That  practice  became  a  habit,  so  that  formal  provision 
was  made  for  the  compilation  of  programs  for  the 
sessions.  The  need  for  expert  guidance  of  some  sort 
was  evident  after  1775.  The  legislatures  increased 
enormously  in  size,  sometimes  to  double  or  treble  the 
former  membership.  Firmly  convinced  of  the  value  of 
general  representation,  the  people  determined  to  have 
plenty  of  it.  These  large  legislatures  must  necessarily 
have  included  numbers  of  inexperienced  members,  who 
would  be  obliged  to  follow  the  lead  of  their  trained 


84  DEVELOPMENT  OF  LAWMAKING 

colleagues.  In  order  to  prevent  the  new  members  from 
losing  themselves  in  the  maze  of  procedure,  the  legis- 
latures found  it  desirable  to  appoint  a  committee  to 
arrange  the  business,  so  that  the  more  important  items 
at  least  would  receive  attention. 

For  some  reason  the  movement  which  brought  these 
committees  into  existence  lost  its  momentum,  and  with 
one  exception  they  never  advanced  beyond  the  starting 
point.  In  some  states  they  lived  along,  playing  a  small 
part  from  session  to  session,  while  in  others  they  quietly 
dropped  out  of  use.  In  New  Hampshire  its  most 
flourishing  period  was  from  1765  to  1784;  after  the 
reorganization  of  the  government  in  that  year,  the 
importance  of  the  committee  declined,  and  its  reports 
were  no  longer  entered  in  the  Journal.  In  Massachusetts 
there  was  little  change,  one  way  or  the  other.  In 
Pennsylvania  it  was  appointed  only  a  few  times,  because 
there  the  president  and  council  were  directed  to  do  such 
work.  In  South  Carolina  it  disappeared  before  1790. 
This  development  is  of  some  interest,  not  because  of  its 
intrinsic  importance,  which  was  slight,  but  because  it 
shows  by  what  a  narrow  margin  the  other  states  escaped 
the  adoption  of  a  system  like  the  one  that  developed  in 
North  Carolina.6 

This  tale  of  aimless  drifting  and  subsequent  decline 
does  not  apply  to  North  Carolina.  There,  instead  of 
lingering  on  as  a  semi-useless  select  committee,  the 

6  The  Journal  does  not  prove  that  the  legislation  committee  in  North 
Carolina  became  standing  before  1783.  In  other  states,  proof  that  it  did 
not  become  standing  is  to  be  found  in  subsequent  appointments  of  similar 
committees  during  the  same  session.  In  New  Hampshire  always  and  often 
in  Massachusetts  a  second  committee  would  be  appointed  near  the  end  of 
the  session,  to  gather  up  the  loose  ends  and  report  on  the  business  yet  to 
be  done.  In  South  Carolina  and  Georgia  the  reports  of  the  committee 
would  be  referred  to  other  committees  for  consideration,  and  the  first  one 
never  reported  again.  N.  H.  St.  Papers,  H.  Journal,  XX,  371,  June  17, 
1785;  Mass.  H.  Journal,  October  18,  1783,  p.  264;  8.  C.  H.  Journal,  August 
1,  1783,  p.  11;  Ga.  Eevol  Sees.,  H.  Journal,  III,  158-159,  July  28,  1782. 


COMMITTEES  ON  LEGISLATION  85 

committee  on  legislation  came  to  be  not  only  the  most 
important  standing  committee  in  the  assembly,  but  a 
powerful  executive  body  as  well,  so  that  its  members 
really  governed  the  state.  Yet,  during  the  first  few  years 
of  its  existence  there  it  differed  in  no  respect  from  simi- 
lar committees  in  other  states.  But  in  North  Carolina 
the  committee  was  kept  busy.  Not  only  the  governor's 
message,  but  all  state  papers  were  referred  to  it,  so  that 
its  reports  included  all  the  important  measures  upon 
which  action  had  to  be  taken.  The  policy  of  concen- 
trating the  most  important  work  in  the  hands  of 
one  committee  naturally  forced  that  committee  into 
prominence. 

The  committee  on  public  bills,  as  the  committee  on 
legislation  came  to  be  called  in  North  Carolina,  first 
appeared  in  the  Provincial  Congress  of  1776,  a  nameless, 
select  committee,  similar  in  all  respects  to  the  com- 
mittees on  legislation  in  the  other  states.7  When  the 
state  government  was  organized  in  1776,  a  similar 
committee,  made  up  of  members  from  both  houses,  was 
appointed  in  the  new  legislature.8  In  1781  and  there- 
after the  governor's  message  with  its  accompanying 
public  papers  was  referred  to  it.9  So  far,  however,  the 
committee  was  not  much,  if  any,  more  important  than 
the  corresponding  committee  in  New  Hampshire.  But 
by  1783,  as  repeated  references  in  the  Journal  show,  it 
had  taken  the  long  step  forward  of  becoming  a  standing 
committee.  By  1784  it  was  acquiring  a  name,  another 
step  in  advance.  Its  contemporaries  never  had  a  dis- 
tinctive title,  but  this  one  was  coming  to  be  known  as 
the  committee  on  public  despatches,  or  on  public  bills,  or 
sometimes  as  the  " Grand  Committee/'  From  1784  on, 
with  the  exception  of  one  year,  this  i '  Grand  Committee, ' ' 

T  N.  C.  Col  Eecs.,  Journal,  X,  546,  April  29,  1776. 
s  N.  C.  St.  Eecs.,  XII,  289,  November  22,  1777. 
» I~bid.,  XVII,  637,  638,  January  28,  29,  1781. 


86  DEVELOPMENT  OF  LAWMAKING 

composed  of  fifteen  or  twenty  of  the  leaders  in  both 
chambers,  was  the  most  important  factor  in  the  whole 
governmental  system  of  North  Carolina. 

An  analysis  of  the  resolutions  regarding  it,  of  the 
subjects  referred  to  it,  and  of  the  work  which  it  did  in 
1784  shows  the  comprehensive  field  which  it  covered. 
According  to  the  Journal  entry,  in  addition  to  making 
out  a  list  of  new  bills  that  were  needed,  the  committee 
was  ordered  "to  examine  the  message  of  His  Excellency 
the  Governor,  together  with  the  papers  accompanying 
the  same,  and  report  what  measures  are  necessary  to  be 
taken  in  consequences  of  the  intelligence  they  convey.  "10 

The  documents  referred  to  the  committee  covered 
subjects  of  the  most  varied  character  and  of  the  greatest 
importance.  The  governor's  message  itself  dealt  with 
numerous  matters  which  concerned  both  local  and 
foreign  interests  of  the  state.  In  the  first  place,  it 
requested  the  assembly  to  take  action  on  the  proposal 
to  allow  Congress  to  collect  an  import  duty  in  North 
Carolina ;  in  addition,  the  governor  urged  that  attention 
be  devoted  to  such  matters  as  trade,  navigation  of  the 
rivers,  and  education;  he  also  submitted  for  amendment 
a  recent  law  regarding  the  land  office.11  The  papers 
which  accompanied  the  message  included  a  copy  of  the 
treaty  of  peace  with  England,  and  certain  recommen- 
dations of  Congress  relating  to  it,  a  copy  of  the  treaty 
between  the  United  States  and  Sweden,  and  the  British 
proclamation  by  which  American  trade  with  the  West 
Indies  was  restricted.  Not  long  after,  an  important 
petition  regarding  the  claim  of  an  Englishman  to  certain 
land  in  North  Carolina  was  referred  to  it.12  The  next 
day,  another  message  of  the  governor,  accompanied  by 
more  papers  from  Congress,  was  given  to  the  committee. 

10  N.  C.  St.  Eecs.,  XIX,  542,  H.  Journal,  May  3,  1784. 

11  Ibid.,  XIX,  494-499,  501,  April  20,  1784. 

12  IUd.,  XIX,  502,  April  21,  1784. 


COMMITTEES  ON  LEGISLATION  87 

These  papers  had  reference  to  land  claimed  by  for- 
eigners, and  to  the  restoration  of  property  to  a  loyalist. 
On  the  same  day,  the  House  ordered  the  committee  to 
consider  and  report  for  what  purposes  the  fines  and 
forfeitures  in  the  Superior  Court  should  be  appro- 
priated.13 The  committee  therefore  was  expected  to  deal 
with  questions  concerning  the  whole  range  of  govern- 
mental activity :  local  affairs,  such  as  finance,  commerce, 
navigation,  and  education;  relations  with  the  United 
States  on  matters  of  revenue,  commerce,  and  treaties 
with  foreign  powers;  and,  finally,  direct  relations  with 
subjects  of  a  foreign  nation  concerning  land  claimed  in 
the  state.  In  its  meetings  the  members  must  have  dis- 
cussed every  vital  matter  of  public  interest,  and  it  is 
clear  that  a  report  of  the  committee  was  a  necessary 
preliminary  step  to  any  important  legislative  act. 

The  long  detailed  reports  comprised  the  committee's 
recommendations  upon  the  various  topics  referred  to  it, 
and  really  constituted  a  definite  and  explicit  statement 
of  the  domestic  and  foreign  policy  of  the  administration. 
The  report  of  1784,  which  may  be  taken  as  typical,  dealt 
with  important  questions  relating  to  both  local  and  inter- 
state affairs.  As  regards  the  policy  of  North  Carolina 
toward  the  United  States,  it  recommended  among  other 
things  that  North  Carolina  agree  to  the  suggestion  that 
Congress  be  allowed  to  collect  import  duties  in  the  ports 
of  the  state,  that  Congress  be  allowed  to  regulate  foreign 
trade,  that  provisions  be  made  for  straightening  out  the 
tangled  condition  of  finance,  that  the  western  lands  be 
ceded  to  the  United  States,  and  that  the  state  repeal 
those  laws  which  would  prevent  carrying  into  effect  the 
terms  of  the  treaty  with  England.  Concerning  state  and 
local  matters,  it  recommended:  the  passing  of  laws  for 
a  tariff  on  negroes  and  merchandise  imported  into  North 

is  N.  C.  St.  Sees.,  XIX,  505,  506,  April  22,  1784. 


88  DEVELOPMENT  OF  LAWMAKING 

Carolina,  and  for  a  tax  on  such  luxuries  as  billiard 
tables,  playing  cards,  and  dice ;  the  passing  of  new  laws 
regarding  highways  and  navigable  rivers,  taverns,  elec- 
tions, and  public  buildings;  a  recommendation  was  also 
made  regarding  relations  with  another  state,  in  connec- 
tion with  the  southern  boundary.14 

These  reports  of  the  committee  furnished  the  assembly 
with  its  legislative  program  for  the  session,  and  the 
measures  suggested  by  it  were  generally  adopted.  That 
would  naturally  be  the  case,  because  the  committee's 
report  was  nothing  but  the  clear  and  definite  statement 
of  the  purposes  and  policies  of  the  assembly  leaders. 
They  determined  what  action  ought  to  be  taken,  and 
then  saw  to  it  that  these  measures  were  approved  by  the 
assembly.  In  1784,  out  of  proposals  for  eighteen  specific 
bills,  fourteen  were  introduced  during  that  session.15 

The  subjects  referred  to  the  committee,  together  with 
its  reports,  show  how  intimately  connected  its  members 
were  with  every  question  of  public  importance.  But  it 
was  not  alone  in  the  fields  of  general  policy  and  of 
legislations  that  the  committee  on  public  bills  was 
practically  supreme.  It  had  in  addition  general  over- 
sight of  the  whole  administrative  system  throughout  the 
state.  The  new  constitution  had  vested  considerable 
executive  authority  in  the  legislature,  and  thus  indirectly 

14  tf.  C.  St.  Eecs.,  XIX,  542-547,  May  13,  1784. 

is  It  is  clear  that  in  1787  at  least  the  management  of  the  assembly  was 
vested  in  a  kind  of  inner  committee,  of  about  twelve  men.  In  that  year,  the 
finance  committee  (see  chapter  IV),  which  was  appointed  as  usual,  was  soon 
fused  with  the  committee  on  public  bills.  The  reason  given  for  this  con- 
solidation was  that  "the  whole  of  the  Gentlemen  who  act  on  one  are  mem- 
bers of  the  others. "  N.  C.  St.  Eecs.,  XX,  192-193,  December  5,  1787.  But  a, 
comparison  of  the  two  committees  shows  that  only  about  half  of  those  on 
the  finance  committee  were  members  of  the  other,  ibid.,  pp.  123,  124,  125r 
126,  136,  152,  188;  the  finance  committee  was  composed  of  19  House,  and 
9  Senate  members,  while  the  public  bills  committee  was  composed  of  14 
House  and  9  Senate.  Only  8  House  members  and  5  Senators  were  on  both 
committees.  The  statement  quoted  above  indicates  that  the  actual  control 
of  affairs  was  in  the  hands  of  these  few  men. 


COMMITTEES  ON  LEGISLATION  89 

it  conferred  more  power  on  this  joint  committee.  In  the 
first  place  the  governor  was  elected  by  the  assembly,  so 
he  must  have  been  on  friendly  terms  with  the  influential 
members  in  that  body.  Moreover  the  legislature  ap- 
pointed judges,  military  officers,  and  also  the  Attorney- 
General,  Treasurer,  and  Secretary  of  State.16  This  ap- 
pointing power  naturally  made  all  the  important  officials 
responsible  to  the  assembly,  or  in  other  words,  to  the 
committee  on  public  bills. 

Thus  in  North  Carolina  a  joint  standing  committee, 
composed  of  the  most  prominent  members  of  the  party 
in  power,  formulated  the  policy  of  the  government  with 
reference  to  local  and  foreign  affairs,  supervised  finance, 
decided  upon  the  legislative  program,  and,  in  addition, 
through  the  appointing  power,  directed  the  adminis- 
tration. It  would  be  difficult  to  point  out  any  power 
possessed  by  the  British  Cabinet  that  was  not  exercised 
by  the  committee  on  public  bills.  The  essence  of  parlia- 
mentary government  is  the  management  of  both  legis- 
lature and  administration  by  a  joint  standing  committee, 
composed  of  the  political  leaders  of  the  party  in  power, 
responsible  to  the  legislature  which  it  guides  and 
directs.  These  conditions  were  fulfilled  in  North  Caro- 
lina. The  chief  difference  between  the  systems  in 
England  and  in  North  Carolina  was  the  fact  that  in  the 
British  Cabinet  legislative  control  over  the  administra- 
tion is  direct,  because  the  members  of  the  Cabinet  are  the 
heads  of  the  executive  departments,  while  in  North  Caro- 
lina the  control  of  the  committee  on  public  bills  was 

16  Thorpe,  Am.  Charters  and  Consts.,  V,  2787-2794,  especially  articles  13, 
14,  15,  22,  24. 

For  other  reports,  see  N.  C.  St.  Bees.,  XX,  491-492,  November  10,  1788; 
XXI,  214-215,  November  9,  1789;  XXI,  889,  November  5,  1790. 

For  lists  of  public  papers  referring  to  it,  see  ibid.,  XX,  128-130,  Novem- 
ber 21,  1787;  XXI,  16-17,  November  7,  1788;  XXI,  69,  November  19,  1788; 
XXI,  876-879,  November  2,  1790;  XXI,  911,  November  12,  1790. 


90  DEVELOPMENT  OF  LAWMAKING 

indirect,  based  on  the  appointing  power.  The  net  result, 
however,  was  the  same  in  both  cases. 

The  interesting  fact  about  this  system  in  North  Caro- 
lina is  it  was  not  an  importation  from  abroad,  but  a 
purely  native  growth.  Indeed  it  is  doubtful  if  the  North 
Carolinians  knew  what  the  British  form  of  government 
really  was,  so  they  could  not  have  copied  if  they  would. 
The  origin  of  the  committee  on  public  bills  is  to  be  found, 
not  in  foreign,  but  in  local,  legislative  procedure.  Before 
1776  the  government  to  all  intents  and  purposes  had  been 
carried  on  by  the  leaders  of  the  popular  party,  but  their 
power  was  based  on  personal  influence  alone.  There 
was  no  regular  institution  like  the  Cabinet  to  give 
permanence  to  the  system.  This  defect  was  remedied 
after  1776.  In  the  first  place  the  governor  was  made 
constitutionally  subject  to  the  assembly,  and  the  extra- 
legal  "  Junto "  was  transformed  into  a  formal  standing 
committee. 

If  there  is  anything  surprising  in  this  duplication  of 
what  has  always  been  considered  a  peculiarly  British 
institution,  it  is  that  more  of  the  states  did  not  stumble 
on  the  same  thing.  Massachusetts  and  New  York  with 
their  systems  of  government  by  " Junto"  both  came 
dangerously  near  it  before  the  Eevolution,  and  no  less 
than  six  legislatures  had  committees  like  the  progenitor 
of  the  "  Grand  Committee "  in  North  Carolina. 

The  appearance  of  this  type  of  government,  however, 
has  left  no  trace  on  the  growth  of  American  institutions. 
For  that  very  reason  it  is  difficult  to  refrain  from  specu- 
lating on  what  might  have  happened  if  the  system  had 
grown  up  in  Virginia,  the  state  which  had  so  much 
influence  in  casting  the  government  of  the  United  States 
in  its  present  mould.  If  James  Madison,  the  political 
scientist  of  the  Federal  Convention,  had  been  as  familiar 
with  this  development  as  he  was  with  the  dead  systems 


COMMITTEES  ON  LEGISLATION  91 

of  ancient  Greece  and  Borne,  he  might  have  urged  a 
similar  scheme  upon  the  constitution  makers  of  1787. 
As  it  was  he  had  devoted  himself  so  completely  to  a  study 
of  the  faults  and  defects  in  foreign  governments  that  he 
had  made  no  attempt  to  analyze  certain  very  interesting 
political  phenomena  just  across  the  border  of  his  own 
state. 


CHAPTER  VI 
THE  COMMITTEE  OF  THE  WHOLE  HOUSE 

While  somewhat  of  a  misnomer,  the  term  "committee 
of  the  whole  house"  has  been  accepted  in  legislative 
parlance  as  the  approved  designation  for  an  informal 
sitting  of  a  lawmaking  body.  It  is  really  not  a  committee 
at  all,  but  a  meeting  of  the  house  itself,  conducted  under 
rules  different  from  those  of  the  formal  sessions. 
Eestrictions  on  the  number  of  speeches  a  member  may 
make  are  removed,  so  that  debate  is  free,  and  the  pre- 
siding officer  may  be  any  member  selected  for  the 
occasion,  except  the  Speaker.  The  purpose  of  such  a 
session  is  to  enable  the  members  to  thresh  out  a  question 
more  completely  than  could  be  done  under  the  limitations 
imposed  by  the  regular  rules. 

The  custom  originated  in  the  English  Parliament, 
apparently  during  the  reign  of  James  I.  Its  adoption 
was  probably  brought  about  by  the  necessity  for  com- 
bining freedom  of  debate  with  certain  restraints  on 
obstreperous  members  who  might  misuse  too  much 
liberty.  The  committee  of  the  whole  is  really  a  com- 
promise between  a  regular  session,  and  an  adjournment 
for  purposes  of  discussion.  The  latter  method  could  not 
be  used  to  advantage  in  any  large  assembly,  because 
some  restraining  influence  would  be  necessary.  But  the 
primitive  form  of  the  committee  of  the  whole  was 
probably  a  short  adjournment,  during  which  members 
could  move  about  from  one  to  another,  and  freely  discuss 
the  merits  of  the  matter  under  consideration.  In  1750 
the  House  of  Representatives  of  New  Hampshire  did 


COMMITTEE  OF  THE  WHOLE  HOUSE       93 

not  have  a  very  complex  organization,  and  sessions  of 
the  committee  of  the  whole  were  unknown.  But  there 
are  several  instances  where  the  House  adjourned  for 
a  short  time,  from  six  minutes  to  a  few  hours,  to  allow 
time  for  discussion  before  a  vote  was  taken.  With  a 
large  membership,  the  only  result  of  such  a  method 
would  have  been  pandemonium,  and  the  adjournment 
and  consequent  freedom  from  rules  would  have  defeated 
its  own  object.  But  in  New  Hampshire  the  practice  was 
common  enough  so  that  a  motion  for  such  an  adjourn- 
ment, far  from  causing  surprise,  was  taken  as  a  matter 
of  course.1 

The  idea  of  an  informal  session  which  should  at  the 
same  time  be  under  some  restrictions  was  brought  to 
America  from  England,  and  the  committee  of  the  whole 
house,  like  the  committee  on  grievances,  was  to  a  greater 
or  less  extent  common  to  most  of  the  middle  and  southern 
colonies.  In  New  York  and  Georgia  all  bills,  with  rare 
exceptions,  were  referred  to  the  committee  of  the  whole 
after  the  second  reading.  While  by  no  means  so  strictly 
followed  elsewhere,  this  practice  was  well  known  in 
Virginia,  and  also  in  the  Carolinas  before  the  war.  In 
New  England,  on  the  other  hand,  the  committee  of  the 
whole,  properly  so-called,  was  rarely  used,  and  then  not 
for  purposes  of  discussing  bills.2 

iN.  H.  Col.  Eecs.,  VI,  453,  January  2,  1756;  a  motion  was  made  for  a 
short  adjournment,  so  ''that  the  members  might  converse  more  freely  on 
the  subject  matter  of  his  Excellency's  message  of  this  day";  the  House 
then  adjourned  for  fifteen  minutes. 

Other  examples:  VI,  155,  November  7,  1752;  pp.  202-203,  May  4,  1753; 
p.  269,  April  12,  1754. 

Sometimes  there  would  be  a  short  adjournment,  in  order  to  allow  the 
passage  of  a  bill  in  one  day,  and  at  the  same  time  comply  with  the  rule 
which  required  at  least  two  adjournments  between  the  three  readings  of 
a  bill. 

2  In  the  session  of  the  New  York  Assembly,  September-October,  1750, 
all  but  four  bills  were  referred  to  the  committee  of  the  whole  after  the 
second  reading.  The  exceptions  were  local  bills,  and  were  committed  to 


94  DEVELOPMENT  OF  LAWMAKING 

In  respect  to  bills,  procedure  did  not  change  very  much 
throughout  the  period.  In  Pennsylvania,  however, 
where  it  had  been  almost  unknown  before  the  war,  the 
practice  of  referring  bills  to  the  committee  of  the  whole 
was  made  a  regular  custom.  A  rule  was  adopted  to  the 
effect  that  all  bills  of  a  public  nature  should  be  placed 
upon  the  calendar  for  a  certain  day,  and  unless  the 
House  explicitly  voted  otherwise,  they  should  be  debated 
in  committee  of  the  whole  previous  to  the  third  reading.3 

But  decrease  in  this  use  of  the  committee  of  the  whole 
was  more  common  than  its  extension.  In  both  the  Caro- 
linas,  where  bills  had  frequently  been  discussed  in 
committee  before  the  war,  the  practice  had  almost  dis- 
appeared by  1790.  Why  it  should  have  been  discon- 
tinued in  South  Carolina  is  not  clear,  for  very  few 
changes  in  procedure  occurred  there.  But  in  North 
Carolina,  at  least  for  this  period,  there  was  no  necessity 
for  such  a  custom.  The  assembly  was  guided  and  con- 
trolled by  the  leaders,  through  the  committee  on  public 
bills.  They  proposed  important  measures,  and  new  bills 
were  framed  either  under  their  supervision  or  by  their 
own  subcommittees.  This  type  of  organization  meant, 
of  course,  a  thorough  centralization  of  authority  in  the 
hands  of  a  few  individuals.  Important  bills,  which  in 
New  York  or  Pennsylvania  would  have  been  referred  to 
committee  of  the  whole,  came  into  the  assembly  of  North 
Carolina  stamped  with  the  mark  of  approval  by  the 
committee  on  public  bills.  Under  such  circumstances 
reference  to  committee  would  have  been  not  only  un- 
necessary, but  somewhat  out  of  harmony  with  the  spirit 

members  from  the  section  interested.  N.  Y.  H.  Journal,  September  24, 
1750,  p.  283 ;  October  3,  p.  286 ;  October  16,  p.  291. 

In  Virginia,  such  reference  was  fairly  common.  In  the  session  which 
lasted  from  October,  1785,  to  January,  1786,  over  twenty  bills  were  thus 
committed. 

s  Pa.  H.  Journal,  January  21,  1791,  p.  106. 


COMMITTEE  OF  THE  WHOLE  HOUSE       95 

of  central  control.  Then,  too,  since  all  bills  were  framed 
by  joint  committees,  differences  of  opinion  between  the 
two  chambers  could  be  satisfactorily  settled  even  before 
the  first  reading. 

Besides  discussing  bills,  the  house  in  committee  of  the 
whole  also  debated  various  financial  measures.  Before 
1776  in  some  cases  the  governor's  recommendations 
would  be  considered  in  informal  session,  and  new  taxes 
might  or  might  not  be  recommended.4  Then,  especially 
after  the  war,  questions  of  taxes  and  revenue  were  often 
discussed  in  committee  of  the  whole,  even  without  any 
urging  from  the  executive.  In  Virginia,  where  the  com- 
mittee on  ways  and  means  did  not  become  firmly  estab- 
lished, financial  measures  were  regularly  debated  in  this 
way.  In  1777,  for  instance,  a  very  extensive  list  of  new 
taxes  was  drawn  up  in  committee  of  the  whole,  and  then 
laid  before  the  House.  The  recommendations  included 
taxes  on  real  estate,  slaves,  horses  and  cattle,  dogs, 
plate  above  a  certain  value,  mortgages,  annuities,  sala- 
ries, tavern  and  marriage  licenses,  and  carriages;  also 
a  poll  tax,  and  an  excise  on  distilled  liquors.5 

4  N.  Y.  H.  Journal,  April  25,  1755,  p.  440.  The  governor  had  urged  the 
adoption  of  measures  for  defending  the  colony;  after  discussion  in  com- 
mittee of  the  whole,  the  House  voted  to  raise  £25,000,  partly  by  a  tax,  and 
partly  by  the  issue  of  bills  of  credit. 

Procedure  in  Virginia  and  North  Carolina  was  similar.  See  especially 
the  short  sessions  of  1754  and  1755,  passim,  Va.  H.  of  B.  Journal.  N.  C. 
Col.  Eecs.,  V,  250,  December  23,  1754;  847,  May  18,  1757. 

s  Va.  H.  of  D.  Journal,  December  13,  1777,  pp.  77-78.  On  November 
29,  1781,  p.  21,  December  5,  p.  28,  and  December  6,  pp.  29-30,  recom- 
mendations were  made  regarding  paper  money,  its  redemption,  and  attempts 
to  fix  its  value.  November  5,  1787,  p.  31,  the  committee  of  the  whole 
recommended  tariff  duties  on  bar  iron  and  castings,  coal,  rope,  cordage,  and 
raw  hemp.  If  a  select  committee  was  appointed  to  report  new  taxes,  its 
report  would  be  subject  to  amendment  and  revision  in  committee  of  the 
whole.  Va.  H.  of  D.  Journal,  December  7,  1781,  p.  31;  December  10, 
p.  34 ;  December  17,  p.  44. 

The  same  practice  was  common  in  New  Hampshire  after  1776,  and  in 
Pennsylvania.  N.  E.  St.  Papers,  VIII,  778-779,  March  4,  1778;  XX,  419, 


96  DEVELOPMENT  OF  LAWMAKING 

In  states  where  a  committee  on  ways  and  means  was 
in  existence,  its  reports  and  recommendations  regarding 
new  taxes  and  similar  matters  were  subject  to  amend- 
ment in  committee  of  the  whole.  When  money  was 
scarce,  demands  for  new  taxes  could  not  be  passed  with 
impunity,  and  every  measure  of  that  kind  was  debated 
at  length  in  informal  session.6 

In  New  York,  too,  the  annual  appropriation  bill  was 
drawn  up  in  committee  of  the  whole.  Salaries  of  the 
governor,  judges,  members  of  the  Council  and  Assembly, 
and,  in  fact,  of  all  state  officials,  were  settled  in  this  way. 
In  addition,  all  accounts  and  claims  of  individuals,  and 
all  state  expenditures,  no  matter  how  minute,  were  voted 
upon  in  committee  of  the  whole.  After  they  were  all 
satisfactorily  determined,  a  select  committee  would  be 
appointed  to  frame  the  appropriation  bill  in  accordance 
with  these  recommendations.7 

Sessions  of  the  committee  of  the  whole  house  were  not 

October  25,  1785;  689,  September  8,  1786;  XXII,  179-180,  January  27, 
1791. 

Pa.  H.  Journal,  March  13,  1759,  p.  28;  March  15,  p.  30;  January  24, 
1772,  pp.  357-358;  February  28,  1777,  p.  116. 

6.ZV.  Y.  H.  Journal,  August  25,  1779,  p.  7;  October  18,  p.  74;  January 
27,  1780,  p.  88,  January  28,  1780,  p.  91 ;  February  7,  1786,  p.  32.  Tax  bills 
were  all  discussed  in  committee  of  the  whole. 

Pa.  H.  Journal,  March  8,  1781,  p.  584,  Report  of  ways  and  means  com- 
mittee referred  to  committee  of  the  whole;  also  March  22,  p.  593,  and 
March  23,  p.  595.  When  Virginia  had  a  committee  on  ways  and  means,  the 
same  procedure  was  followed;  Va.  H.  Journal,  December  2,  1779,  p.  76; 
December  10,  1779,  p.  83. 

S.  C.  H.  Journal,  February  12,  1784,  p.  104;  February  17,  p.  125; 
February  16,  1785,  p.  140. 

Md.  H.  Journal,  November  25,  1785,  p.  22,  one  of  the  very  rare  cases 
when  the  committee  of  the  whole  was  even  mentioned.  A  motion  to  go 
into  committee  of  the  whole  to  consider  the  establishment  of  permanent 
funds  for  payment  of  judges'  salaries  was  not  carried. 

T  N.  Y.  H.  Journal,  1750;  almost  daily  sessions  of  committee  of  the  whole 
from  September  to  November  7,  pp.  277  to  298,  when  a  partial  report  was 
presented.  Further  report  presented  November  9,  pp.  299-303.  November 
13,  p.  303,  the  appropriation  bill  was  read  the  second  time,  and  referred 
to  committee  of  the  whole. 


COMMITTEE  OF  THE  WHOLE  HOUSE       97 

devoted  wholly  to  bills  and  questions  of  finance;  any 
matter  of  importance  might  be  discussed  in  informal 
session.  In  Massachusetts,  for  instance,  when  one  of 
the  Harvard  buildings  where  the  General  Court  had  been 
meeting  was  burned,  the  House  in  committee  of  the  whole 
took  up  the  question  of  rebuilding  it  at  public  expense.8 
In  Pennsylvania,  the  Indian  question  was  discussed  in 
committee  of  the  whole,  and  a  recommendation  was  made 
at  one  time  that  settlements  on  Indian  lands  be  prevented 
by  law,  unless  the  land  had  been  purchased.9  Sometimes 
charges  of  maladministration  or  corruption  in  public 
offices  were  investigated  by  the  committee  of  the  whole.10 
An  amusing  case  occurred  in  Georgia,  when  a  petition 
was  presented  to  the  House  complaining  of  inhuman 
treatment  of  prisoners  in  the  jail.  The  House  "imme- 
diately resolved  itself  into  a  Committee  of  the  Whole 
House  upon  the  said  Petition, "  and  went  in  a  body  to 
the  jail  to  look  into  the  matter.11  The  notion  of  a  legis- 
lative body  in  committee  of  the  whole  on  a  tour  of 
investigation  savors  somewhat  of  the  humorous.  Then, 
during  the  decade  before  the  war,  relations  with  the  other 
colonies  and  with  England  sometimes  came  up  for 
discussion  in  committee  of  the  whole,  especially  in 
Massachusetts  and  Virginia.12 

Perhaps  the  most  unusual  function  of  the  committee 
of  the  whole  house  was  to  be  found  in  Virginia,  where 

s  Mass.  H.  Journal,  January  26,  1764,  p.  229;  the  General  Court  had 
been  meeting  in  Cambridge,  because  of  an  epidemic  of  smallpox  in  Boston. 

9  Pa.  H.  Journal,  January  7,  1768,  p.  10. 

10  Pa.  H.  Journal,  December  6,  1780,  p.  546;  N.  C.  St.  Sees.,  XVIII, 
425. 

11  Ga.  Col.  Sees.,  XIV,  214-215,  February  12,  1765.    The  House  numbered 
about  fifteen,  so  it  was  not  much  larger  than  some  select  committees  for 
investigation  in  other  colonies. 

vMass.  H.  Journal,  October  19,  1764,  p.  97;  June  2,  1766,  p.  20;  June 
2,  1773,  pp.  26-27;  June  8,  1774,  p.  19. 

Va.  H.  of  B.  Journal,  November  13,  1764,  p.  254;  April  6,  1768;  April 
7,  p.  158. 


98  DEVELOPMENT  OF  LAWMAKING 

its  recommendations  were  similar  to  the  reports  4>f  the 
committees  on  legislation,  or  of  the  committee  on  public 
bills.  Instead  of  allowing  a  select  or  standing  committee 
to  make  out  the  program  for  the  session,  the  House  in 
informal  session  drew  up  its  own. 

In  Virginia  especially  the  fiction  of  the  committee  of 
the  whole  house  was  carried  a  step  further  than  else- 
where. In  that  state  it  had  two  forms,  or  perhaps  rather 
a  kind  of  dual  personality.  There  was  first  the  simple 
"Committee  of  the  Whole  House,"  to  which  were  re- 
ferred bills  after  the  second  reading.  Then  there  was  the 
"Committee  of  the  Whole  House  on  the  State  of  the 
Commonwealth,"  which  discussed  the  governor's  letter 
and  outlined  the  legislative  business.  There  was,  to  be 
sure,  no  actual  difference  in  form,  but  there  was  a  clear 
distinction  between  the  two  in  the  minds  of  the  members, 
and  in  the  nature  of  the  work  done.  If  by  mistake 
business  was  referred  to  the  simple  committee  of  the 
whole,  when  it  should  have  gone  to  the  other,  the  error 
would  be  rectified,  and  an  entry  would  be  made  in  the 
journal  to  the  effect  that  the  transfer  had  been  made.13 

Just  as  in  North  Carolina  the  governor's  message  and 
the  public  papers  accompanying  it  were  referred  to  the 
committee  on  public  bills,  so  in  Virginia  such  matters 
went  to  the  committee  of  the  whole  house  on  the  state 
of  the  commonwealth.1*  After  due  deliberation,  the 
' l  Committee ' '  would  lay  its  recommendations  before  the 
House.  These  reports,  which,  taken  together,  really 
constituted  the  legislative  program,  included  such  im- 
portant subjects  as  new  taxes,  relations  with  Congress, 
public  lands,  the  judiciary,  militia,  and  commerce.  The 

is  Fa.  H.  of  D.  Journal,  October  11,  1776,  p.  8;  the  "Committee  of 
the  Whole  House "  was  discharged  from  proceeding  on  the  letters  from 
Congress,  and  they  were  referred  to  the  "Committee  of  the  Whole  House 
on  the  State  of  the  Commonwealth."  Similar  case  November  25,  1785, 
p.  57. 

i*  Ibid.,  October  8,  1776,  pp.  3,  5-6. 


COMMITTEE  OF  THE  WHOLE  HOUSE       99 

reports  for  1778  suggested  new  laws  regarding  pilotage 
rates,  the  recovery  of  debts,  and  military  matters,  such 
as  cavalry  service,  bounties  for  enlistments,  and  the 
employment  of  free  negroes.  In  addition  it  urged  that 
the  governor's  steps  to  procure  a  loan  in  France  be 
approved,  and  that  a  clerkship  of  foreign  correspondence 
be  established.15  Some  general  reports  submitted  in 
1784  give  a  fairly  good  idea  of  the  scope  of  this  work. 
Bills  were  recommended  for  regulating  the  election, 
payment,  and  attendance  of  delegates  to  Congress,  revis- 
ing the  recently  made  judiciary  acts,  altering  Article 
eight  of  the  Articles  of  Confederation,  appointing  a 
certain  sum  for  use  of  Congress,  revising  the  militia 
acts,  laying  a  temporary  embargo  on  the  export  of 
Indian  corn,  regulating  foreign  vessels  trading  with 
Virginia,  enabling  officers  to  distrain  property  in  order 
to  collect  the  army  tax,  and  finally  for  selling  certain 
public  lands.16 

Another  interesting  phase  of  this  work  of  the  Vir- 
ginian committee  of  the  whole  house  on  the  state  of  the 
commonwealth  was  its  dabbling  in  executive  business. 
Sometimes  it  recommended  laws,  the  passing  of  which 
was  really  equivalent  to  the  issue  of  an  executive  order. 
For  instance,  at  one  time  it  suggested  the  passing  of  a 
law  to  repeal  an  act  by  which  troops  had  been  located 
at  certain  places  on  the  frontier.17  Going  still  further  in 
this  direction,  actual  executive  orders  were  sometimes 
proposed  in  informal  session,  and  of  course  confirmed  by 
the  House.  The  governor  and  council,  for  example, 
might  be  directed  to  take  measures  for  disposing  of 

is  Va.  H.  of  D.  Journal,  May  15,  1778,  pp.  8-9;  May  16,  p.  10;  May  18, 
p.  11.  November  30,  1779,  pp.  74-75,  reports  recommended  laws  regarding 
the  navy  of  Virginia,  foreign  consuls,  and  regulations  of  sailors  belonging 
to  foreign  vessels. 

i«7&id.,  May  15,  1784,  p.  8;  May  19,  pp.  11-12;  May  20,  p.  13;  May  21, 
p.  15;  May  28,  pp.  25-26;  June  10,  p.  47. 

17  Ibid,,  October  11,  1776,  p.  8. 


100         DEVELOPMENT  OF  LAWMAKING 

certain  military  supplies.  Again,  they  were  authorized 
to  give  orders  for  defending  the  southwestern  frontier 
during  some  trouble  with  the  Cherokees.  Once  at  least 
the  organization  of  certain  militia  companies  was  ar- 
ranged, and  the  officers  were  named  by  the  House. 
Finally  orders  were  given,  to  be  carried  out  by  the  com- 
missioners of  the  navy,  or  by  the  governor  and  council, 
regarding  the  movement  and  work  of  vessels  in  the  navy 
of  Virginia.18  These  were  matters  which,  strictly  speak- 
ing, belonged  to  the  executive  department,  but  for  several 
years  after  the  war  the  line  of  demarcation  between  the 
functions  of  executive  and  legislature  were  not  very 
clearly  drawn. 

In  New  Hampshire  work  of  a  similar  character  was 
done  by  a  joint  committee  of  the  whole.  The  legislative 
program,  strictly  so-called,  was  drawn  up  by  the  com- 
mittee on  legislation,  but  other  measures  upon  which 
action  was  needed  were  laid  before  the  assembly  in 
reports  of  this  joint  informal  session.  For  instance, 
state  officials  would  be  appointed,  and  the  advisability 
of  creating  commissioners  for  certain  purposes  would  be 
suggested,  such  as  buying  clothing  for  troops,  or  receiv- 
ing the  money  lent  to  the  Continental  Loan  Office. 
Moreover,  if  the  report  of  the  committee  on  legislation 
omitted  important  measures,  this  joint  committee  of 
the  whole  would  propose  new  laws.19 

is  Va.  H.  of  D.  Journal,  1776,  October  19,  p.  19 ;  October  25,  p.  27 ; 
October  28,  p.  31 ;  October  30,  p.  33. 

«tf.  H.  St.  Papers,  VIII,  745-746,  December  24,  1777.  In  a  series  of 
joint  sessions  in  1785,  the  following  recommendations  were  submitted  to 
the  House:  that  the  Navigation  Act  should  not  be  suspended;  that  the 
President  be  authorized  to  write  to  the  other  states  concerning  regulation 
of  commerce;  and  that  committees  be  appointed  to  " close"  the  public 
accounts  of  the  state,  to  consider  a  revision  of  the  proscription  laws,  and 
to  consider  a  plan  for  establishing  a  ' '  post  rider. ' ' 

N.  H.  St.  Papers,  XX,  419,  October  24,  1785 ;  October  25,  p.  419 ;  October 
26,  p.  420 ;  November  4,  p.  438.  For  similar  action,  see  February,  1786,  pp. 
490,  495,  497. 


COMMITTEE  OF  THE  WHOLE  HOUSE     101 

In  New  York,  procedure  in  this  respect  resembled  that 
in  Virginia.  The  committee  of  the  whole  house,  after 
discussing  the  governor's  speech  or  message,  would 
make  suggestions  regarding  the  action  to  be  taken  upon 
his  recommendations.20 

This  brief  survey  of  the  committee  of  the  whole 
emphasizes  certain  differences  in  the  systems  of  govern- 
ment in  North  Carolina  and  in  Virginia.  There  is 
nothing  particularly  strange  or  out  of  the  ordinary  in 
the  practice  of  debating  bills  and  financial  measures  in 
committee  of  the  whole,  but  the  custom  of  making  out 
the  legislative  program  in  committee,  as  was  done  in 
Virginia,  was  unusual.  At  first  sight  it  might  appear 
to  be  a  very  democratic  method;  the  representatives  of 
the  people  in  an  informal  way  talked  over  the  needs  of 
the  state,  and  then  proceeded  to  legislate  accordingly. 
But  the  gathering  of  a  hundred  and  fifty  members  for 
the  purpose  of  deciding  upon  such  needs  could  accom- 
plish little,  because  the  very  numbers  would  cause 
confusion.  Some  guidance  would  be  necessary,  and 
either  a  few  clever  politicians  must  have  agreed  to  direct 
the  members  in  such  deliberations,  thereby  turning  the 
whole  thing  into  a  machine-controlled  assemblage,  or 
the  governor's  "letter"  would  be  made  the  basis  of 
the  recommendations.  Either  horn  of  the  dilemma  may 

20  N.  Y.  H.  Journal,  August  25,  1779,  p.  7.  Committee  of  the  whole 
recommended  bills:  (1)  to  confiscate  royalists'  estates;  (2)  to  supply  the 
troops  with  clothing;  (3)  to  raise  money  for  state  debts. 

September  7,  1780,  pp.  6-7.  Committee  of  the  whole  recommended: 
(1)  election  of  delegates  to  Congress;  (2)  appointment  of  a  select  com- 
mittee to  report  on  methods  for  defending  the  frontier;  (3)  appointment 
of  a  committee  to  procure  supplies  for  the  army;  (4)  appointment  of  a 
committee  to  complete  the  enrollment  of  the  continental  regiments.  Further 
recommendations  on  September  13,  pp.  19-20. 

In  North  Carolina,  in  1786,  the  legislative  program  was  made  up  in 
joint  committee  of  the  whole;  after  that,  however,  the  committee  on  public 
bills  did  the  work,  as  usual.  N.  C.  St.  Eecs.,  XVIII,  255,  November  27, 
1786;  November  28,  pp.  260,  261. 


102         DEVELOPMENT  OF  LAWMAKING 

have  been  taken.  In  either  case,  procedure  differed 
radically  from  that  in  North  Carolina,  where  the  legis- 
lative policy  was  framed  by  the  standing  committee  on 
public  bills,  a  compact,  efficient  little  group  of  assembly 
leaders,  sufficiently  small  to  devise  a  consistent  policy, 
and  influential  enough  to  put  it  through.  The  recom- 
mendations of  the  committee  of  the  whole  house  on  the 
state  of  the  commonwealth  resembled  those  of  the  com- 
mittee on  public  bills  in  character,  but  they  were  not  so 
numerous.  Then,  too,  they  were  never  laid  before  the 
House  in  one  solid  block  early  in  the  session,  to  serve 
as  a  constant  guide  to  the  assembly  in  its  work,  but  were 
brought  forward  in  groups  of  three  or  four.  The  indi- 
cations of  smooth  organization  so  conspicuous  in  North 
Carolina  were  wanting  in  Virginia.  If  the  House  of 
Delegates  was  controlled  by  a  machine,  the  leaders  were 
not  such  able  parliamentarians  as  were  the  members  of 
the  public  bills  committee  in  North  Carolina.  Evidence 
on  this  point  is  wanting,  but  from  the  very  nature  of 
the  case  it  seems  likely  that  the  governor  had  more  or 
less  influence  in  managing  the  legislature.  The  proba- 
bility is  slight  that  the  committee  of  the  whole  house, 
unguided  and  undirected,  could  arrive  at  any  decision 
regarding  legislative  policy  on  important  measures. 
Moreover,  had  such  sessions  been  wholly  controlled  by 
the  assembly  leaders,  it  is  probable  that  the  custom  would 
have  ultimately  found  expression  in  the  appointment  of 
a  committee  on  legislation.  On  the  other  hand,  a  good 
politician  like  Patrick  Henry  could  probably  guide  the 
House  through  personal  influence  alone,  so  that  the 
recommendations  of  the  informal  session  would  reflect 
his  will.  In  North  Carolina,  the  governor  could  have  had 
no  great  influence  in  shaping  legislation,  because  he  was 
only  one  of  the  political  leaders,  elected  by  the  same  men 
who  appointed  the  committee  on  public  bills.  The  system 


COMMITTEE  OF  THE  WHOLE  HOUSE     103 

in  Virginia  enabled  an  executive  with  a  strong  person- 
ality to  control  legislation,  while  that  in  North  Carolina 
absolutely  precluded  such  a  possibility.  It  is  clear,  then, 
that  there  was  a  marked  difference  in  the  types  of 
government  in  the  two  states.  That  in  North  Carolina 
revealed  some  of  the  characteristics  of  the  parliamentary 
system,  while  that  in  Virginia  foreshadowed  the  Con- 
gressional form,  which  the  Federal  Convention,  largely 
influenced  by  the  statesmen  of  Virginia,  drew  up  for  the 
United  States. 


CHAPTEE  VII 
COMMITTEE  PROCEDURE 

Because  of  the  limitations  imposed  by  the  nature  of 
the  material,  an  account  of  committee  procedure  in  the 
colonial  period  must  deal  for  the  most  part  with  such 
strictly  formal  details  as  the  method  of  appointment, 
time  and  place  of  meeting,  and  the  external  features 
of  committee  organization.  Information  about  these 
matters  can  be  gleaned  from  the  journals,  but  that 
source  never  gives  even  a  glimpse  of  committees  at  work. 
There  are  apparently  no  records  available  which  outline 
the  debates  and  discussions,  and  describe  proceedings  in 
the  committee  rooms.  The  records  are  bare  enough 
when  the  subject  is  taken  up  from  the  viewpoint  of 
institutional  development,  but  they  are  extremely  dis- 
appointing when  one  looks  for  the  human  element  in  the 
institution.  Legislators  of  the  eighteenth  century  were 
by  no  means  lacking  in  an  understanding  of  devious 
political  methods,  and  it  is  probable  that  in  their  com- 
mittee meetings  they  worked  out  schemes  which  would 
make  interesting  reading  to-day.  Then,  if  in  moments 
of  excitement  members  sometimes  forgot  their  sense  of 
propriety,  as  they  occasionally  did  even  in  formal 
session,1  they  very  likely  displayed  considerable  heat  in 
the  committee  rooms.  The  colonial  governors  deserve 

i  M ass.  H.  Journal,  February  18,  1782,  p.  581.  "Mr.  Otis  arose  and 
claimed  the  protection  of  the  House,  as  the  member  from  Oakham  had 
broke  the  Orders  of  the  House  by  calling  him  a  Scoundrell  when  in  Order 
on  his  seat.  For  which  indecency  the  Member  from  Oakham  is  ordered 
to  ask  pardon  of  the  House,  and  to  ask  pardon  of  Mr.  Otis.  Which  he  did 
accordingly. ' ' 


COMMITTEE  PROCEDURE  105 

thanks  for  telling  what  tales  they  did  about  the  practices 
of  certain  leaders  in  the  assemblies,  but  even  they  had 
little  opportunity  to  find  out  what  went  on  at  the  private 
conferences  of  these  shining  lights  in  the  lower  house. 
It  takes  the  sharp  rivalry  of  active  politics  to  bring  out 
the  truth  regarding  methods  employed;  when  a  man  is 
thoroughly  exasperated  at  the  work  of  his  opponents, 
he  will  tell  all  he  knows  about  their  operations.  Conse- 
quently there  are  more  stories  of  clever  manipulation 
before  1776  than  after,  because  between  the  outbreak 
of  war  and  the  adoption  of  the  Federal  Constitution 
there  was  no  party  in  opposition.  There  were  no 
competitors  to  report  to  the  public  facts  about  legislative 
schemes,  and  active  participants  in  shady  transactions 
would  not  be  likely  to  leave  evidence  that  might  be  used 
against  them.  Consequently,  any  attempt  to  discuss 
committee  procedure  must  be  analytical  and  dry  rather 
than  descriptive  and  interesting. 

In  forming  an  estimate  of  the  importance  of  com- 
mittees in  legislative  work,  the  method  of  appointment 
is  a  factor  worthy  of  consideration.  Up  to  a  short  time 
ago  all  committees  in  the  national  House  were  appointed 
by  the  Speaker,  that  is,  by  the  political  chief  of  the  party 
in  power.  The  membership  was  arranged  with  an  eye 
to  party  interests,  and  control  over  such  appointments 
was  looked  upon  as  a  legitimate  means  of  building  up  a 
firm  party  organization  in  the  House.  Even  now,  when 
the  Speaker's  power  in  this  respect  is  somewhat  less 
autocratic  than  it  was,  the  majority  party  still  has  full 
control  of  committee  membership,  and  the  method  of 
appointment  makes  the  standing  committee  system  a 
powerful  engine  for  party  purposes. 

In  the  British  Parliament  of  the  sixteenth  and  seven- 
teenth centuries,  the  manner  of  appointment  was  so 
different  that  partisan  control  of  committees  would  have 


106         DEVELOPMENT  OF  LAWMAKING 

been  difficult  if  not  impossible.  Instead  of  being  chosen 
by  the  Speaker,  they  were  named  in  a  haphazard  way  by 
the  members  of  the  House.  After  it  had  been  voted  to 
refer  a  bill  to  a  committee,  the  Speaker,  in  the  quaint 
words  of  D'Ewes,  "did  put  the  House  in  mind,  to  name 
committees.  And  thereupon  every  one  of  the  House  that 
listed,  did  name  such  other  Members  of  the  same,  to  be  of 
the  Committee,  as  they  thought  fit;  and  the  clerk  either 
did,  or  ought  to  have  written  down  as  many  of  them,  as 
he  conveniently  could;  and  when  a  convenient  number 
of  the  Committees  named,  were  set  down  by  the  Clerk, 
then  did  the  Speaker  move  the  House  to  name  the  time 
and  place,  when  and  where  they  should  meet."2  Such  a 
crude  method  indicates  that  party  leaders  could  have 
cared  little  about  the  personnel  of  the  committees.  The 
main  thing  was  to  get  some  one  to  do  the  work,  and 
apparently  in  those  days  one  member  answered  the 
purpose  as  well  as  another. 

In  the  assemblies  of  New  Hampshire,  Massachusetts, 
New  Jersey,  and  probably  North  Carolina,  much  the 
same  method  was  used,  although  there  was  an  attempt 
at  orderliness  which  was  wanting  in  the  House  of 
Commons.  According  to  the  rules,  "No  member  shall 
nominate  more  than  one  person  for  one  committee,  pro- 
vided the  person  by  him  first  nominated  be  chosen.  "3 

2  D  'Ewes,  44,  February  3,  1559 ;  Jameson,  252.  This  same  method  was 
in  use  in  1603 ;  a  member  would  move  that  a  committee  be  appointed,  ' '  and 
to  that  Purpose  were  called,  and  set  down  by  name  .  .  .  , "  etc.  Commons 
Journal,  I,  151,  March  23,  1603. 

32V.  H.  St.  Papers,  VIII,  740,  December  20,  1777,  Eule  15.  Eepeated 
June  8,  1784,  N.  H.  St.  Papers,  XX,  72.  Similar  rules,  Mass.  Prov.  Cong. 
Journal,  p.  164,  April  29,  1775 ;  Mass.  H.  Journal,  May  30,  1777,  p.  8 ;  N.  J. 
H.  Journal,  October  24,  1792,  p.  8. 

In  Massachusetts  they  were  occasionally  appointed  by  ballot.  H. 
Journal,  November  22,  1780,  p.  126;  May  29,  1789,  p.  21. 

In  North  Carolina  there  is  no  direct  statement  regarding  the  method 
of  appointment  during  this  period,  but  apparently  committees  were  nomi- 
nated by  the  House.  The  following  statement  hints  at  such  a  method: 
Eesolved,  that  "before  the  House  proceed  to  the  choice  of  a  Committee 


COMMITTEE  PROCEDURE  107 

The  modern  method  of  appointment  by  the  Speaker 
prevailed  in  several  colonies.  In  Pennsylvania  and 
Maryland,  both  methods  were  used,  although  the  choice 
of  committees  by  the  House  took  place  only  in  cases  of 
special  importance.4 

In  Virginia  and  Georgia  committees  were  regularly 
appointed  by  the  Speaker.  Evidence  on  this  point  is 
clear  enough  in  the  case  of  the  latter  assembly.  Accord- 
ing to  rule,  it  was  ordered :  l '  That  the  Speaker  appoint 
the  Committees  with  the  approbation  of  the  House,  and 
if  any  Dispute  arise  the  Committees  shall  be  ballotted 
for  by  the  House  the  Member  that  made  the  Motion  or 
proposed  and  the  Member  that  seconded  it  being  always 
two  of  that  Committee."5  Apparently  the  Speaker 
looked  upon  the  duty  of  appointing  committees  as  his 
special  privilege,  and  objected  to  any  interference  with 
that  right.  During  the  quarrel  between  Speaker  and 
House  in  1756  the  Speaker  complained  that  "They 
appointed  Several  Committees  I  refused  to  chuse  the 
Members  they  chuse  them  themselves.  "6 

they  determine  of  what  number  the  Committee  shall  consist. "  JV.  C.  St. 
Bees.,  XVII,  269,  November  20,  1785. 

*  Pa.  H.  Journal,  October  16,  1767,  pp.  3-4,  Eule  13.  "That  the  Speaker 
have  Power  to  Nominate  Persons  for  Committees,  and  that  none  who  are 
nominated  refuse  the  Service;  not  that  any  of  the  Members  shall  be  hereby 
debarred  of  their  Privilege  of  nominating  Persons,  if  they  think  fit,  or 
rejecting  such  as  are  nominated  by  the  Speaker;  in  which  Case  the  Opinion 
of  the  House  shall  govern. ' ' 

It  seems  likely  that  appointment  by  the  Speaker  was  comparatively  new, 
entries  in  the  Journal  for  October  17,  1764,  p.  374,  and  October  16,  1765, 
p.  433,  state  that:  "The  House  proceeded  to  the  Nomination  of  their 
Committees  for  the  ensuing  year.  .  .  ." 

After  the  war,  appointment  by  the  Speaker  pretty  generally  superseded 
the  other  method.  Two  instances  were  found  when  the  Speaker  asked  the 
House  to  name  the  committees,  because  of  the  importance  of  the  measures 
involved,  but  he  was  directed  to  appoint  them.  Pa.  H.  Journal,  September 
20,  1787,  p.  72;  September  12,  1788,  p.  68. 

For  Maryland,  Md.  H.  Journal,  November  13,  14,  1782,  pp.  5-6; 
November  15,  1784,  p.  3,  Eule  32. 

5  Ga.  Col.  Bees.,  XIII,  424,  October  14,  1760,  Eule  17. 

e  Ibid.,  XIII,  101,  February  16,  1756. 


108         DEVELOPMENT  OF  LAWMAKING 

In  the  case  of  Virginia  evidence  is  not  so  clear,  but 
what  little  there  is  practically  proves  that  committees 
were  appointed  by  the  Speaker.7  In  the  first  place, 
Edmund  Randolph,  in  discussing  the  famous  Speaker 
Robinson,  wrote  that  "to  committees  he  nominated  the 
members  best  qualified.  "8  Again,  in  1789,  an  order 
passed  the  House  to  the  effect  that  every  session,  the 
Speaker  should  appoint  a  committee  to  inspect  the  clerk 's 
office.  When  the  committee  was  appointed  the  following 
session,  the  record  in  the  Journal  is  worded  in  exactly 
the  same  way  as  are  the  entries  regarding  all  committee 
appointments:  "Ordered,  that  a  committee  be  ap- 
pointed," and,  "a  committee  was  appointed  of  .  .  ."so 
and  so.9  Thus,  although  the  record  itself  gives  no  hint 
that  the  Speaker  named  the  committee,  the  preceding 
order  makes  it  probable  that  he  did  so.  Moreover,  when 
there  was  a  departure  from  the  regular  method,  the 
entry  in  the  minutes  calls  special  attention  to  that  fact.10 

Although  the  method  of  appointment  by  the  Speaker 
lends  itself  more  readily  to  the  partisan  control  of 
committees,  sometimes,  even  when  chosen  by  the  House, 
they  were  used  by  the  leaders  for  party  interests. 
Evidence  already  presented  shows  how  well  they  were 
made  to  serve  the  purposes  of  the  radicals  in  both  Massa- 
chusetts and  North  Carolina  before  the  war.11  After 
1776  in  North  Carolina,  even  during  the  period  when 
there  was  really  no  organized  party  in  opposition,  the 

7  Miller,  Legisl.  of  the  Prov.  of  Va.,  109,  states  that  committees  were 
appointed  by  the  House.  The  little  evidence  available  points  the  other  way. 

s  Va.  H.  of  B.  Journal,  1766-1769,  introduction,  p.  xiii,  quoting  Ean- 
dolph's  MSS.,  "Hist,  of  Va.,"  pp.  110-111. 

9  Fa.  H.  of  D.  Journal,  November  5,   1789,  p.  41;    October  19,   1790, 
pp.  4-5. 

10  The  committee  on  ways  and  means,  1779  and  1780,  was  elected  by 
ballot.     Va.  H.  of  D.  Journal,  November  9,  10,  1779,  pp.  47,  52;  May  18, 
19,  1780,  pp.  12,  14. 

11  Chapters  II  and  III. 


COMMITTEE  PROCEDURE  109 

centralized  organization  of  the  House,  typified  in  the 
committee  on  public  bills,  was  made  more  complete  by 
appointing  members  of  that  committee  to  others,  both 
standing  and  select.  In  1784,  Person,  one  of  the  active 
leaders,  was  on  ten  important  committees,  and  two  of 
his  colleagues,  Hawkins  and  Hooper,  were  on  nine.  The 
standing  committees  on  public  bills  and  on  privileges 
and  elections,  and  select  committees  to  arrange  for  the 
settlement  of  accounts,  to  examine  the  accounts  of  the 
commissioners  of  confiscated  estates,  to  make  up  the 
budget,  to  report  what  taxes  should  be  levied,  and  to 
decide  upon  the  method  of  raising  them,  were  all  con- 
trolled by  about  a  dozen  men.12 

After  the  committee  was  appointed,  some  sort  of 
organization  was  necessary.  No  matter  how  small  it 
was,  every  committee  had  to  have  a  chairman.  In 
Pennsylvania,  Maryland,  and  North  Carolina,  the  pre- 
siding officer  was  chosen  by  the  committee  itself,  while 
in  Virginia  he  was  apparently  named  by  the  Speaker.13 
In  the  case  of  those  standing  committees  of  Virginia  and 
North  Carolina  which  were  kept  busy  throughout  the 
session,  clerks  were  also  appointed.  These  were  not 
members  of  the  House,  but  regular  officials,  selected  by 
the  committee  itself  in  North  Carolina,  and  elected  by 

12  In  the  first  session  of  the  Federal  House  of  Representatives,  the  rule 
regarding  committee  appointment  stated  that  the  Speaker  should  appoint 
committees,  unless  the  House  decided  that  they  should  consist  of  more  than 
three  members,  in  which  case  they  were  to  be  chosen  by  ballot.  U.  S.  H. 
Journal,  April  7,  1789,  p.  9.  Later  this  was  changed,  and  the  Speaker  was 
given  authority  to  appoint  all  committees,  unless  the  House  specially 
directed  otherwise;  in  the  latter  case  they  were  to  be  chosen  by  ballot, 
ibid.,  January  13,  1790,  p.  140.  This  arrangement  resembled  the  method 
in  Pennsylvania,  and  was  probably  introduced  through  the  influence  of 
Speaker  Muhlenberg. 

is  pa.  H.  Journal,  December  31,  1790,  pp.  56-58,  rule  16.  Md.  H. 
Journal,  November  29,  1765,  p.  43.  N.  C.  Col.  Eecs.,  V,  793,  965;  X,  594. 
In  other  states  evidence  is  wanting. 


110         DEVELOPMENT  OF  LAWMAKING 

ballot  in  Virginia.14  In  Maryland,  a  few  committee 
clerks  were  appointed  at  the  beginning  of  each  session, 
and  then  assigned  to  any  committee  in  need  of  their 
services.15 

In  the  colonial  period  this  simple  form  of  organiza- 
tion was  sufficient,  but  in  North  Carolina  and  Virginia 
after  1776  greater  burdens  necessitated  more  attention 
to  details.  In  order  to  insure  increased  efficiency  in 
dealing  with  the  business  referred  to  it,  the  committee 
on  finance  in  North  Carolina  divided  itself  into  sub- 
committees, to  each  of  which  was  given  a  definite  division 
of  the  work.  One  would  make  up  the  budget,  another 
would  look  into  the  expenditures  of  the  previous  year, 
and  still  another  would  be  given  charge  of  the  tobacco 
speculation  in  which  the  state  engaged.  In  1789  the 
chairmen  of  these  subdivisions  reported  directly  to  the 
House,  instead  of  to  the  main  committee.16  In  1790  the 
committee  on  public  bills  divided  into  subcommittees, 
for  the  purpose  of  drawing  up  the  bills  recommended 
in  its  report.17 

Apparently  some  such  method  was  adopted  in  Virginia 
after  1785,  although  the  Journal  does  not  expressly 
record  the  fact.  This  was  made  necessary,  not  only  by 
the  amount  of  work,  but  also  by  the  size  of  the  com- 
mittees. With  -a  membership  of  about  a  hundred,  the 


.  C.  Col.  Sees.,  IV,  823,  June  19,  1746;  VIII,  141,  October  30,  1769. 
In  Virginia,  before  the  Kevolution,  each  of  the  six  regular  standing  com- 
mittees had  its  own  clerk.  After  the  war,  the  committees  were  grouped 
in  pairs,  one  with  a  large  amount  of  work,  and  one  with  little,  and  a  clerk 
was  appointed  for  each  pair.  Va.  H.  of  B.  Journal,  February  28,  1752, 
pp.  7-8;  March  6,  1773,  pp.  10-11.  H.  of  D.  Journal,  December  18,  1776, 
p.  103;  November  16,  1779,  p.  58. 

is  Md.  H.  Journal,  November  7,  1765,  p.  19  ;  May  6,  1783,  p.  2  ;  Novem- 
ber 11,  1783,  p.  2. 

i«N.  C.  St.  Recs.,  XVIII,  282-283,  December  6,  1786;  six  subcommittees. 
XXI,  634,  November  30,  1789,  nine  subcommittees.  These  were  all  joint, 
because  the  main  committee  was  joint. 

IT  IUd.,  XXI,  889,  November  5,  1790. 


COMMITTEE  PEOCEDURE  111 

committee  on  propositions  and  grievances  was  clearly 
obliged  to  distribute  the  business  referred  to  it  in  such 
a  way  that  the  chairman  and  a  few  faithful  ones  would 
not  do  all  the  work.  The  fact  that  in  1788  reports  from 
this  committee  were  presented  by  seven  different  men 
shows  that  the  North  Carolina  scheme  of  subcommittees 
had  been  adopted  in  Virginia.18  This  method  was 
peculiar  to  North  Carolina  and  Virginia;  elsewhere  the 
standing  committees  were  not  large  enough  for  such 
subdivisions. 

In  this  period,  when  so  much  of  the  work  consigned 
to  committees  had  to  do  with  investigating  the  truth  of 
facts  alleged  in  petitions,  authority  to  force  the  attend- 
ance of  witnesses  was  practically  a  necessity.  Such 
power  was  regularly  given  to  the  standing  committees 
of  New  York,  Maryland  after  1783,  and  Virginia,  and 
in  other  states  it  was  granted  whenever  circumstances 
made  it  desirable.19 

Once  given,  this  authority  was  supported  by  the  full 
power  of  the  House,  and  refusal  to  obey  the  summons 
of  a  committee  was  a  serious  offense.  Occasionally, 
apparently  in  ignorance  of  the  law,  a  man  ordered  to 
appear  at  a  certain  time  would  calmly  send  word  that 
he  was  unable  to  attend.  In  New  York,  Pennsylvania, 
and  Virginia,  when  this  happened,  the  offender  was 

is  Fa.  H.  of  D.  Journal,  October-December,  1788.  Up  to  November  6, 
W.  Cabell,  the  regular  chairman,  reported  each  time;  November  6,  pp.  27- 
28,  Bullit  reported;  November  10,  p.  33,  Bland;  November  15,  p.  45,  both 
Cabell  and  Bullit;  November  24,  27,  28,  Carrington,  New,  and  Callis; 
December  17,  Wilkinson.  In  the  same  session  reports  from  the  committee 
on  claims  were  presented  by  five  different  men. 

is  N.  T.  H.  Journal,  August  25,  1779,  p.  6.  Md.  H.  Journal,  November 
11,  1783,  p.  2.  Fa.  H.  of  B.  Journal,  February  28,  1752,  pp.  7-8.  In  1777, 
the  power  was  granted  to  any  committee  appointed  for  purpose  of  gathering 
evidence,  ibid.,  June  7,  1777,  p.  67.  N.  C.  Col.  Reas.,  VII,  352,  November 
8,  1766.  N.  C.  St.  Bees.,  XVIII,  273,  December  4,  1786.  8.  C.  H.  Journal, 
January  23,  1787,  pp.  11-12;  January  27,  p.  25.  Ga.  Bevol.  Bees.,  Ill,  40, 
January  3,  1782. 


112         DEVELOPMENT  OF  LAWMAKING 

declared  guilty  of  contempt  of  the  authority  of  the 
House,  and  placed  under  arrest.20 

After  the  summons  had  been  issued,  the  witness  was 
under  the  protection  of  the  House.  In  New  York,  anyone 
who  prosecuted  a  person  for  statements  made  in  testify- 
ing before  a  committee  was  declared  guilty  of  breach 
of  privilege.21  In  both  Virginia  and  Georgia  committee 
witnesses,  like  members  of  the  assembly,  were  privileged 
from  arrest  during  their  attendance,  and  also  during  the 
journey  to  and  from  the  place  where  the  hearing  was 
held.  Finally,  in  Virginia,  persons  who  attempted  to 
tamper  with  witnesses,  or  prevent  them  from  appearing 
or  giving  evidence,  were  considered  guilty  of  high  crimes 
and  misdemeanors.22 

The  marked  variations  in  the  number  and  importance 
of  standing  committees  in  the  early  states  affords  an 
excellent  standard  for  determining  the  stage  of  develop- 
ment which  they  had  reached.  Another  side  light  on  this 
same  thing  is  to  be  found  in  the  relatively  crude  arrange- 
ments made  for  committee  meetings.  When  the  state 
houses  were  built,  standing  committees  had  not  been  of 
sufficient  importance  to  attract  attention  to  their  needs, 
consequently  in  only  rare  cases  had  rooms  been  provided 
in  which  they  could  meet.  Not  only  were  the  comfortable, 
almost  luxuriously  furnished,  committee  quarters  of  the 
present  day  unknown,  but  in  many  states  committees 
were  actually  forced  to  meet  in  private  houses.  In  New 
York,  New  Jersey,  Virginia,  and  North  Carolina  the 
members  of  committees  assembled  for  work  in  some  such 
place  as  "the  House  of  George  Burns/'  "the  House  of 

20  N.  Y.  H.  Journal,  May  8,  1769,  p.  53.    Pa.  H.  Journal,  March  3,  1759, 
p.  24.     Va.  H.  of  B.  Journal,  March  26,  1767,  p.  97;  March  28,  30,  pp.  100, 
103. 

21  N.  Y.  H.  Journal,  December  28,  1768,  p.  66. 

22  Va.  H.  of  B.  Journal,  December  8,  1769,  p.  324.     Ga.  Col.  Eecs.,  XIV, 
152-153,  November  27,  1764. 


COMMITTEE  PEOCEDURE  113 

the  Widow  Stillwell,"  or  perhaps  at  Mr.  Whitehead's 
or  Jacob  Hyer's.23  To  be  sure  other  places  were  some- 
times used,  but  they  all  show  that  the  standing  committee 
was  not  nearly  as  important  as  it  is  at  the  present  time. 
In  Massachusetts  they  met  in  the  ' '  upper  rooms ' '  of  the 
old  statehouse,  probably  on  the  third  floor,  which  is  now 
so  insecure  that  only  a  few  visitors  are  permitted  to  go 
up  there  at  one  time,  or  in  the  "Chambers  of  the 
Porches, "  in  the  same  building.24  In  the  other  states 
meeting  places  were  also  provided,  somewhat  more 
suitable  than  private  houses,  for  the  discussion  of 
important  business.  In  New  Jersey,  they  sometimes 
met  in  "the  old  Meeting  House, "2B  and  in  New  York  in 
the  Council  chamber,  or  in  the  Speaker's  room.26  In 
Pennsylvania  there  was  a  * '  Committee  Room  at  the  East 
End  of  the  State-House,"27  and  by  1779  "Committee 
Rooms "  were  provided  in  Virginia.28 

The  usual  time  for  committee  meetings  was  in  the 
evening,  after  the  daily  session.29  In  Virginia  they  also 
met  in  the  morning,  before  the  House  assembled,  and 
sometimes  during  the  hour  supposed  to  be  set  apart  for 
morning  prayer.30  In  Massachusetts,  however,  they  met 
during  the  regular  sessions  of  the  assembly,  provided, 
of  course,  that  there  was  a  quorum  without  them.  When 

23  N.  T.  H.  Journal,  June  5,  1753,  p.  339;  June  29,  p.  348.     N.  J.  H. 
Journal,  September  7,  1776,  p.  66;   September  12,  p.  10;  March  1,  1777, 
p.  90. 

Bruce,  Inst.  Hist,  of  Fa.,  II,  479 ;  Rowland,  Life  of  George  Mason,  I,  335. 
N.  C.  Col.  Bees.,  V,  795;  VIII,  141. 

24  Mass.  H.  Journal,  July  31,  1775,  p.  27;  May  28,  1779,  p.  10. 

25  N.  J.  H.  Journal,  November  23,  1776,  p.  47. 

26  N.  Y.  H.  Journal,  June  4,  1751,  p.  309;  November  20,  p.  326. 

27  pa.  H.  Journal,  October  17,  1761,  p.  189. 

28  Fa.  H.  of  D.  Journal,  October  20,  1779,  p.  16. 

29  Rowland,  George  Mason,  I,  335,  Mason  to  Lee.     JV.  C.  Col.  Eecs.,  V, 
975 ;  VIII,  141.    S.  C.  H.  Journal,  March  3,  1787,  p.  215. 

so  Fa.  H.  of  B.  Journal,  December  8,  1769,  p.  324. 


114         DEVELOPMENT  OF  LAWMAKING 

measures  of  special  importance  were  under  consideration, 
the  committees  would  be  called  in.81 

The  active  leaders  must  have  found  it  very  burden- 
some to  spend  all  day  in  regular  session  and  then  devote 
half  the  night  to  committee  work.  In  an  exceptionally 
busy  season  they  not  only  had  little  time  for  pleasure, 
but  were  even  deprived  of  their  sleep.  A  member  of  the 
Provincial  Congress  of  North  Carolina  found  that  the 
business  of  getting  the  new  government  on  its  feet  was 
no  easy  task.  "In  my  time,"  he  wrote,  "I  have  been 
used  to  business,  both  public  and  private,  but  never  yet 
experienced  one-fourth  part  of  what  I  am  now  neces- 
sarily obliged  to  undertake — we  have  no  rest,  either 
night  or  day.  The  first  thing  done  in  the  morning  is  to 
prepare  every  matter  necessary  for  the  day — after 
breakfast,  to  Congress — there,  generally,  from  9  until 
3  o'clock — no  sitting  a  minute  after  dinner,  but  to 
different  committees ;  perhaps  one  person  will  be  obliged 
to  attend  four  of  them  between  4  o  'clock  and  9  at  night — 
then  to  supper,  and  this  generally  brings  us  to  12  at 
night.  This  has  been  the  life  I  have  led  since  my  arrival 
here — in  short  I  never  was  so  hurried."32 

To  be  sure,  that  was  an  exceptionally  busy  period,  and 
it  is  doubtful  if  representatives  were  ordinarily  so 
active.  The  leaders  may  have  worked  hard  and  long, 
but  apparently  they  were  the  only  ones  who  took  their 
committee  duties  very  seriously.  All  the  way  from 
Pennsylvania  to  Georgia  there  was  the  same  tale  of 

si  Mass.  H.  Journal,  June  8,  1776,  p.  57,  the  House  ordered  "That  all 
the  Committees  of  the  House  be  called  in. ' '  Ibid.,  January  27,  1779,  p.  114. 

At  one  time,  when  the  Senate  proposed  to  adjourn,  because  of  small 
attendance,  the  House  reported  that  it  was  unnecessary,  because  a  quorum 
was  present,  and  there  were  enough  besides  to  "set"  on  all  the  important 
committees.  September  18,  1781,  p.  212.  Again,  when  the  House  wished 
the  joint  committees  to  sit  immediately,  the  Senate  reported  that  matters 
of  importance  were  being  discussed,  so  that  members  could  not  be  spared 
to  sit  on  committees.  January  30,  1782,  pp.  499-500. 

32  N.  C.  Col.  Eecs.,  X,  1033,  appendix,  Jones  to  Iredell,  April  28,  1776. 


COMMITTEE  PROCEDURE  115 

failure  to  attend  meetings.  Usually  members  dodged 
their  responsibilities  in  this  respect,  and  it  took  much 
prodding  on  the  part  of  the  chairman  to  get  them  to  do 
anything.  In  the  Pennsylvania  House  a  member  once 
remarked  that  "  Every  Gentleman  must  be  sensible  of 
the  difficulty  with  which  Committees  are  collected  .  .  . ; ' ' 
and  again,  "business  consigned  to  a  large  Committee 
was  done  by  a  few  of  its  members  or  not  at  all  .  .  ,"83 
In  regard  to  a  certain  petition  which  had  been  referred 
by  the  Virginia  House  to  a  select  committee,  George 
Mason  wrote  that  the  members  seemed  inclined  to  favor 
it,  "if  this  can  properly  be  said  of  men  who  are  too 
indolent  to  attend  to  anything.  The  Committee  have 
met,  or  rather  failed  to  meet,  at  my  lodgings  every 
morning  and  evening  for  this  fortnight/'34  In  North 
Carolina,  an  irate  legislator  once  complained  that  "The 
want  of  punctuality  among  members  in  attending  com- 
mittees has  called  for  the  exercise  of  more  philosophy 
than  I  possess."35  In  Georgia  carelessness  in  this 
respect  became  so  general  that  the  House  was  forced  to 
impose  a  fine  of  six  pence  on  members  who  did  not  come 
to  a  committee  meeting  within  fifteen  minutes  of  the 
time  fixed  by  the  chairmen;  if  they  did  not  come  at  all, 
they  were  fined  two  shillings.36 

This  general  lack  of  interest  in  committee  meetings 
may  have  been  only  another  manifestation  of  the  ten- 
dency of  the  legislatures  in  the  middle  and  southern 
states  to  imitate  procedure  in  the  House  of  Commons, 
for  complaint  was  made  about  the  same  difficulty  there 
in  1604.37 

ss  Pa.  Debates,  October  26,  1787,  p.  8. 

34  Rowland,  George  Mason,  I,  335,  Mason  to  Lee. 

35  N.  C.  St.  Eecs.,  XVI,  613,  May  1,  1782. 

38  Qa.  Col.  Eecs.,  XIII,  590,  November  12,  1761;  594,  November  13. 

ST  Commons  Journal,  I,  169,  April  12,  1604.  "Upon  a  Motion  made 
touching  the  slow  Proceeding  and  Dispatch  of  such  Bills  and  Business, 
as  were  depending  in  the  House,  which  grew  (as  was  said)  by  the  Non- 


116         DEVELOPMENT  OF  LAWMAKING 

It  is  clear  that  members  did  not  look  upon  their  com- 
mittee duties  as  a  pleasure,  and  such  complaints  lead  to 
the  suspicion  that  our  forefathers  were  not  filled  with 
that  frantic  desire  to  play  their  parts  in  legislative 
matters  which  has  sometimes  been  attributed  to  them. 

In  conclusion,  so  far  as  the  state  legislatures  are 
concerned,  it  can  be  said  that  by  1790  the  standing 
committees  had  become  the  most  conspicuous  feature  of 
the  organization  of  nearly  all  the  American  assemblies. 
Before  very  many  years  the  same  system  had  been 
adopted  by  the  national  House  of  Representatives. 
Thus  at  the  present  time  the  type  of  organization  in  the 
British  House  of  Commons  is  fundamentally  unlike  that 
in  the  American  House  of  Representatives.  In  England 
the  popular  branch  of  the  legislature  is  built  up  around 
the  Cabinet,  a  group  of  party  leaders  organized  as  an 
administrative  body.  In  the  United  States,  on  the  other 
hand,  where  the  legislators  take  no  part  in  actual  admin- 
istration, the  lower  house  is  split  into  numerous  standing 
committees.  But  in  the  beginning  the  House  of  Commons 
was  in  principle  not  so  very  different  from  the  average 
colonial  assembly,  and  in  both  places  the  conception  of 
what  a  legislature  ought  to  be  was  practically  the  same. 
A  study  of  committee  history  during  this  period  brings 
out  the  fact  that  by  1760  the  American  legislature  had 
reached  a  point  where  slightly  different  conditions 
might  very  easily  have  forced  it  into  a  line  of  develop- 
ment parallel  to  that  taken  by  the  popular  house  of 
Parliament. 

At  the  beginning  of  the  seventeenth  century,  the 
House  of  Commons  had  a  system  of  committees  very 
much  like  those  in  use  later  in  some  of  the  American 

attendance  of  a  sufficient  Number  at  Committees;  it  was  Ordered,  That  if 
Eight  of  any  Committee  do  assemble,  they  might  proceed  to  a  Kesolution 
in  any  Business  of  the  House." 


COMMITTEE  PROCEDURE  117 

colonies.  But  just  at  the  time  when  this  form  of  organi- 
zation was  developing,  Parliament  began  its  long  and 
bitter  quarrel  with  the  Stuart  kings.  If  this  had  been 
merely  a  struggle  between  two  political  parties,  it  would 
not  necessarily  have  affected  institutional  development. 
But  it  was  a  conflict  between  two  opposing  theories  of 
government,  or  two  sources  of  authority,  so  that  there 
was  at  stake  not  the  mere  question  of  party  control,  but 
the  rights  and  privileges  of  the  House  of  Commons. 
Henceforth,  for  three-quarters  of  a  century,  the  chief 
business  of  Parliament  was  not  to  legislate,  but  to  protect 
its  rights  against  the  aggressive  supporters  of  the 
prerogative.  Such  a  situation  called  for  a  firmly  knit, 
well-organized  body,  the  guidance  of  which!  could  be 
entrusted  to  a  few  active  leaders.  Consequently,  because 
they  were  designed  for  purposes  of  legislation  rather 
than  for  a  defensive  campaign,  the  committees  which 
had  grown  up  gave  way  to  a  system  of  control  by  party 
leaders.  By  the  time  of  the  flight  of  James  II,  Parlia- 
ment had  become  accustomed  to  that  kind  of  organiza- 
tion, and  the  long  uninterrupted  Whig  rule  of  the  first 
half  of  the  eighteenth  century  served  to  make  it  perma- 
nent. Thus  when  the  House  of  Commons  finally  found 
itself  safe  from  all  royal  attacks  upon  its  privileges,  the 
Cabinet  had  superseded  the  system  of  standing  com- 
mittees as  the  chief  factor  in  lawmaking  machinery. 

In  the  American  colonies,  standing  committees  were 
introduced  just  as  they  had  been  in  the  House  of 
Commons.  Then,  in  the  same  way,  there  developed  the 
friction  between  prerogative  and  people  which  had 
resulted  in  civil  war  in  England.  But  in  the  colonies 
the  struggle  did  not  last  nearly  as  long  as  it  had  in  the 
mother  country.  To  be  sure  some  of  the  legislatures  pro- 
duced the  "  Junto, "  a  primitive  kind  of  central  organ- 
ization, and  the  governors  were  generally  engaged  in 


118         DEVELOPMENT  OF  LAWMAKING 

altercations  with  the  assembly.  But  the  lower  house 
easily  made  good  its  right  to  a  predominant  place  in 
colonial  government,  and  the  royal  executive  was  some- 
what contemptuously  thrust  aside.  Trouble  did  not 
become  acute  until  the  English  officials  tried  to  regain 
some  of  the  lost  ground,  and  then  royal  authority  was 
thrown  off  once  for  all.  Moreover,  for  the  first  few  years 
after  the  war  party  rivalry  almost  disappeared  in  the 
new  states,  so  that  there  was  no  real  necessity  for  strong 
centralization  in  the  lower  house.  Instead  of  being  put 

/into  a  state  to  resist  a  long  siege,  the  assemblies  were 
therefore  organized  primarily  for  purposes  of  legis- 
lation, and  the  standing  committee  became  the  most 
important  feature  of  their  mechanism.  The  tendency 
toward  a  parliamentary  form  of  government,  the  germ 
of  which  existed  in  the  ' '  Junto, "  thereupon  came  to  an 
end. 

/  The  only  exception  to  this  general  trend  was  in  North 
Carolina,  where  the  legislature  was  built  up  around  the 
central  committee  on  public  bills.  Other  standing  com- 
mittees were  used  there,  but  the  prominence  of  that  one 
made  the  assembly  resemble  the  English  Parliament 
more  closely  than  the  other  American  legislatures.  In 
that  one  state  the  quarrels  between  governor  and 
assembly  had  been  exceedingly  bitter,  and  consequently 
there  was  more  need  for  a  closely  organized  lower  house. 
The  government  was  always  in  trouble,  and  for  one 
period  of  seven  years  several  counties  refused  not  only 
to  send  representatives  to  the  legislature,  but  also  to 
pay  taxes.38  Because  of  this  continual  turmoil,  North 
Carolina  became  accustomed  to  a  centralized  assembly, 
and  that  form  of  organization  was  retained,  as  it  had 

38  N.  C.  Col.  Recs.,  IV,  preface,  p.  xix.  Some  of  the  counties  objected 
to  the  royal  order  regulating  the  number  of  representatives  they  might 
send,  so  from  1747  to  1754  they  withdrew  from  participation  in  the 
government;  during  these  years  there  was  no  regular  assembly. 


COMMITTEE  PBOCEDURE  119 

been  in  England,  after  the  conditions  which  made  it 
necessary  had  disappeared. 

The  trend  of  development  in  Parliament,  and  in  the 
colonial  and  state  legislatures  during  this  period,  indi- 
cates clearly  that  the  steady  normal  growth  of  the 
average  Anglo-Saxon  assembly  would  result  in  a  system 
of  standing  committees.  Such  a  conclusion  is  suggested 
by  procedure  in  Parliament  in  the  early  part  of  the 
seventeenth  century,  and  is  confirmed  by  the  history  of 
committee  activity  in  America,  especially  after  1776. 
In  no  colony  save  one  was  the  constitutional  strife  severe 
enough  to  force  the  assemblies  into  a  posture  of  defense, 
and  to  hold  them  there  until  that  form  of  organization 
became  permanent.  Admirably  as  it  has  worked  during 
the  long  period  of  peace  which  has  followed  the  consti- 
tutional struggle,  the  custom  of  entrusting  the  manage- 
ment of  Parliament  to  the  party  leaders  was  called  into 
being  and  given  permanence  by  the  severity  of  that 
conflict.  Had  the  same  difficulties  arisen  in  America 
after  the  Revolution  as  they  did  in  England  after  the 
Great  Rebellion,  the  legislatures  would  have  been  com- 
pelled to  adopt  a  similar  system  of  central  control. 


CHAPTER  VIII 
THE  FIRST  CONGRESS 

The  period  of  the  Revolution  and  Confederation  was 
primarily  one  of  governmental  reorganization,  during 
which  colonies  were  being  transformed  into  states,  and 
charters  into  constitutions.  In  this  remodeling  the 
Americans  had  the  advantage  of  years  of  practical 
training  back  of  them,  so  that  not  very  much  experi- 
mentation was  necessary.  For  that  reason  serious 
blunders  were  avoided,  and  when  the  constitutions  were 
finally  drawn  they  proved  to  be  sensible,  workable 
instruments,  providing  for  governmental  structures  very 
similar  to  those  of  the  past.  In  like  manner  the  members 
of  the  Federal  Convention  showed  a  tendency  to  follow 
well-known  precedents  as  closely  as  possible.  To  be  sure 
their  task  was  more  complicated  than  that  of  any  state 
convention,  because  there  had  been  so  little  experience 
with  federal  government  in  America.  But  even  they 
were  called  upon,  not  to  invent  new  principles,  but 
rather  to  adapt  and  apply  familiar  ones.  This  was 
particularly  true  in  the  case  of  the  legislature.  It  was 
taken  for  granted  that  the  federal  assembly  would  not 
differ  in  its  main  outlines  from  any  one  of  those  of  the 
states. 

There  were,  however,  two  problems  to  be  solved,  both 
puzzling,  perhaps  even  more  troublesome  than  would 
have  been  the  working  out  of  some  wholly  new  idea. 
— In  the  first  place,  it  was  necessary  to  adjust  the  theory 
of  representation  to  the  requirements  of  a  federal 
government.  Some  arrangement  was  needed  which 


THE  FIRST  CONGEESS  121 

would  provide  for  the  interests,  and  secure  the  partici- 
pation, of  the  voters  on  the  one  hand  and  of  the  several 
states  on  the  other.  Then  the  fields  in  which  the  new 
Congress  must  and  might  operate,  as  well  as  those  from 
which  it  was  wholly  debarred,  had  to  be  surveyed  and 
bounded  with  no  little  care.  These  were  vexing  ques- 
tions, and  the  handling  of  them  demanded  both  finesse 
and  wisdom.  To  many  Americans  who  had  fought  to 
escape  the  meddling  of  one  central  government  the 
establishment  of  another  was  nothing  less  than  a  gra- 
tuitous insult,  and  their  susceptibilities  could  not  be 
altogether  ignored. 

Although  all  these  constitutions,  both  state  and 
national,  were  based  largely  upon  colonial  and  contem- 
porary precedents,  there  was  one  striking  omission. 
There  is  not  a  reference  in  any  of  them  to  the  political 
party.  They  furnish  the  framework  of  government,  and 
provide  for  the  necessary  number  of  departments  and 
officials,  but  they  disregard  the  very  agency  that  made 
possible  the  successful  working  of  the  whole  system. 
The  fact  that  party  organizations  dominated  colonial 
governments  apparently  escaped  notice.  It  may  be  that 
because  there  was  only  one  party  during  and  for  a  time 
after  the  war,  the  conventions  felt  that  the  days  of  such 
activity  were  over.  Or  their  neglect  may  be  accounted 
for  by  an  impression  that  parties  were  things  of  ill- 
repute,  forces  of  the  under-world  of  government,  known 
to  politicians,  but  not  referred  to  in  the  polite  society 
of  respectable  statesmen.  Whatever  may  have  been  the 
reason,  the  constitutions  were  permeated  with  that 
eighteenth  century  obsession  that  all  government,  like 
ancient  Gaul,  was  divided  into  three  parts.  Executive, 
legislative,  and  judicial  departments  were  duly  created 
and  separated,  but  the  first  two  proved  to  be  in  the 
future  as  they  had  been  in  the  past  merely  the  instru- 


122         DEVELOPMENT  OF  LAWMAKING 

ments  of  the  majority  party.  As  left  by  the  Constitution, 
the  government  was  externally  complete,  but  sadly 
lacking  within,  like  a  motor  car  minus  the  engine.  It 
might  be  added  that  this  defect,  undeniably  a  vital  one, 
was  subsequently  remedied  by  Alexander  Hamilton. 

The  new  system  was  scheduled  to  begin  operations 
on  March  4,  1789,  but  for  various  reasons  there  was  a 
delay  of  nearly  a  month  in  getting  under  way.  To  those 
curious  or  interested  citizens  who  were  waiting  to  see 
how  the  House  of  Representatives  would  handle  itself 
this  circumstance  must  have  seemed  like  an  unpropitious 
beginning.  Although  there  were  but  fifty-nine  members 
in  all,  only  thirteen  of  them  were  present  on  the  date 
named,  and  it  was  not  until  April  1  that  the  organization 
was  completed.1 

In  personnel  the  first  national  House  of  Representa- 
tives did  not  differ  materially  from  any  one  of  its 
thirteen  prototypes  in  the  states.  Suffrage  was  extended 
to  those  qualified  to  vote  for  the  "most  numerous  branch 
of  the  State  legislature, ' '  so  there  was  no  great  likelihood 
that  the  national  House  would  contain  very  much  more 
in  the  way  of  talent  and  ability  than  its  contemporaries. 

i  When  the  time  for  the  third  session  arrived  interest  had  been  so  com- 
pletely aroused  that  no  time  was  lost.  The  following  extract  shows  what 
difficulties  were  encountered  by  members  from  a  distance.  "The  punc- 
tuality of  the  members  has  been  such  that  we  were  within  one  of  forming  a 
quorum  of  both  houses  on  the  first  day,  a  circumstance  well  worthy  of  note. 
We  have  today  got  over  all  preparatory  ceremonies  and  shall  now  go 
seriously  to  work.  I  cannot  foretell  whether  the  Campaign  will  be  a  bloody 
one  or  not — it  has  opened  with  ominous  circumstances;  by  taking  the  field 
at  a  season  when  other  combatants  go  into  winter  quarters.  Many  of  our 
champions  have  from  the  combined  inconveniences  of  tempestuous  weather 
and  bad  roads  met  with  terrible  disasters  in  repairing  to  the  Camp.  Burke 
was  shipwrecked  off  the  Capes;  Jackson  and  Mathews  with  great  difficulty 
landed  at  Cape  May  and  travelled  160  miles  in  a  wagon  to  the  City.  Burke 
got  here  in  the  same  way.  Gerry  and  Partridge  were  overset  in  the  stage; 
the  first  had  his  head  broke  and  made  his  Entree  with  an  enormous  black 
patch;  the  other  had  his  ribs  sadly  bruised  and  was  unable  to  stir  for  some 
days.  Tucker  had  a  dreadful  passage  of  16  days  with  perpetual  storms. " 
"The  South  Carolina  Federalists,"  Am.  Hist.  Eev.,  XIV,  779. 


THE  FIRST  CONGEESS  123 

Every  legislative  body  is  something  of  a  mirror,  so  to 
speak,  in  which  the  voters  are  reflected  with  a  surprising 
degree  of  accuracy,  so  in  this  particular  instance  the 
members  were  good  eighteenth  century  Americans, 
average  representatives  of  the  ruling  class  of  the  time. 
Many  of  them  had  the  advantage  of  more  or  less  expe- 
rience in  their  own  local  assemblies.  Frederick  Augustus 
Muhlenberg,  the  first  Speaker  of  the  House,  had  been 
trained  in  the  duties  of  his  office  in  Pennsylvania.  He 
seems  to  have  been  blessed  with  common  sense  and  tact, 
about  the  only  qualifications  needed  at  the  time,  because 
the  speakership  was  not  originally  a  political  office. 

Perhaps  an  even  more  prominent  member  was  James 
Madison,  the  " little  Virginian,"  who  brought  with  him 
a  fund  of  information  concerning  matters  legislative 
and  governmental.  Because  of  his  active  part  in  the 
Federal  Convention  he  was  more  widely  known  than 
Muhlenberg,  and  he  rather  than  the  Speaker  was  looked 
upon  as  the  " first  man"  in  the  House.2  While  he  was 
a  man  of  intellectual  ability,  he  lacked  force  and  driving 
power,  and  was  as  guileless  as  a  child  in  matters  per- 
taining to  clever  political  manoeuvring.  Madison,  wrote 
Fisher  Ames,  "is  probably  deficient  in  that  fervor  and 
vigor  of  character  which  you  will  expect  in  a  great  man. 
He  is  not  likely  to  risk  bold  measures,  like  Charles  Fox, 
nor  even  to  persevere  in  any  measures  against  a  firm 
opposition  like  the  first  Pitt.  He  derives  from  nature 
an  excellent  understanding,  however,  but  I  think  he 
excels  in  the  quality  of  judgment.  He  is  possessed  of 
a  sound  judgment,  which  perceives  truth  with  great 
clearness,  and  can  trace  it  through  the  mazes  of  debate, 
without  losing  it.  He  is  admirable  for  this  inestimable 
talent.  As  a  reasoner  he  is  remarkably  perspicuous  and 
methodical.  He  is  a  studious  man,  devoted  to  public 

2  Ames,  Works,  I,  36. 


X 


124         DEVELOPMENT  OF  LAWMAKING 

business,  and  a  thorough  master  of  almost  every  public 
question  that  can  arise,  or  he  will  spare  no  pains  to 
become  so,  if  he  happens  to  be  in  want  of  informa- 
tion. .  .  .  His  clear  perception  of  an  argument  makes 
him  impressive,  and  persuasive  sometimes.  .  .  .  Upon 
the  whole  he  is  an  useful,  respectable,  worthy  man.  .  .  . 
Let  me  add,  without  meaning  to  detract,  that  he  is  too 
much  attached  to  his  theories,  for  a  politician.  He  is 
well  versed  in  public  life,  was  bred  to  it,  and  has  no  other 
profession.  Yet,  I  may  say,  it  is  rather  a  science,  than 
a  business  with  him.  He  adopts  his  maxims  as  he  finds 
them  in  books,  and  with  too  little  regard  to  the  actual 
state  of  things. '  '3 

Among  others  deserving  mention,  the  young  member 
just  quoted,  Fisher  Ames  of  Massachusetts,  was  one  of 
the  most  promising.  Early  in  his  career  he  attracted 
attention  through  his  vigorous  advocacy  of  a  powerful 
federal  government,  and  he  was  one  of  the  most  enthu- 
siastic of  Hamilton's  supporters.  He  was  even  more 
clear-headed  than  Madison  in  his  reasoning,  and  he 
certainly  surpassed  him  in  forcefulness  of  character. 
His  own  mind  worked  so  rapidly  that  he  was  inclined 
to  be  intolerant  of  slowness  in  others,  and  he  was 
continually  expressing  disgust  at  the  deliberate  and 
ponderous  movements  of  the  legislature.  It  was  ill 
health  rather  than  lack  of  ability  that  prevented  him 
from  rising  to  a  position  of  prominence  in  national 
affairs. 

On  the  whole,  the  first  House  of  Eepresentatives  would 
compare  favorably  with  other  bodies  of  its  kind.  It 
could  apparently  be  depended  upon  to  accomplish  the 

3  Ames,  WorTcs,  I,  48-49.  In  an  earlier  letter  Ames  wrote  that  Madison 
was  a  * '  man  of  sense,  reading,  address,  and  integrity,  as  'tis  allowed.  Very 
much  Frenchified  in  his  politics.  He  speaks  low,  his  person  is  little  and 
ordinary.  He  speaks  decently,  as  to  manner,  and  no  more.  His  language 
is  very  pure,  perspicuous,  and  to  the  point, "  ibid.,  I,  35-36. 


THE  FIRST  CONGRESS  125 

work  for  which  it  was  elected,  and  in  so  doing  it  would 
very  likely  waste  as  much  time  in  debating  trifles  and 
in  overemphasizing  imaginary  difficulties  as  its  contem- 
poraries were  in  the  habit  of  doing.  Such  is  the  way  of 
democracy.  Those  who  expected  more  of  it,  who  were 
inclined  to  idealize  it  and  to  hope  for  great  and  even 
spectacular  achievements  were  disappointed,  for  when 
it  finally  settled  down  to  work  it  proved  to  be  very 
legislature-like  in  its  movements.  At  the  end  of  his  first 
eight  weeks  in  Congress,  Ames  wrote :  "I  felt  chagrined 
at  the  yawning  listlessness  of  many  here,  in  regard  to 
the  great  objects  of  the  government;  their  liableness  to 
the  impression  of  arguments  ad  populum;  their  state 
prejudices;  their  overrefining  spirit  in  relation  to 
trifles;  their  attachment  to  some  very  distressing  for- 
malities in  business,  and  which  will  be  a  curse  to  all 
despatch  and  spirit  in  transacting  it.  I  compared  these 
with  the  idea  I  had  brought  here,  of  demi-gods  and 
Roman  Senators,  or  at  least,  of  the  first  Congress.  The 
objects  now  before  us  require  more  information,  though 
less  of  the  heroic  qualities,  than  those  of  the  first  Con- 
gress. I  was  sorry  to  see  that  the  picture  I  had  drawn 
was  so  much  bigger  and  fairer  than  the  life.  .  .  .  But 
since,  I  have  reflected  coolly,  that  in  all  public  bodies, 
the  majority  will  be  such  as  I  have  described — I  may 
add,  ought  to  be  such ;  and  if  a  few  understand  business, 
and  have,  as  they  will,  the  confidence  of  those  who  do 
not,  it  is  better  than  for  all  to  be  such  knowing  ones ;  for 
they  would  contend  for  supremacy;  there  would  not  be 
a  sufficient  principle  of  cohesion.  .  .  .  The  House  is 
composed  of  very  good  men,  not  shining,  but  honest  and 
reasonably  well  informed,  and  in  time  they  will  be  found 
to  improve,  and  not  be  much  inferior  in  eloquence, 
science,  and  dignity,  to  the  British  Commons.  They  are 
patriotic  enough,  and  I  believe  there  are  more  stupid 


126         DEVELOPMENT  OF  LAWMAKING 

(as  well  as  more  shining)  people  in  the  latter,  in  propor- 
tion."4 Two  days  later  he  wrote  again:  "We  are  not 
in  haste,  or  at  least,  have  not  learned  to  be  in  a  hurry  to 
advantage.  I  think  it  is  the  most  dilatory  assembly  in 
the  universe."5 

In  constructing  the  national  legislature,  the  Federal 
Convention  did  little  beyond  laying  down  the  broad  out- 
lines. It  provided  for  the  Speaker  of  the  House,  but  it 
left  practically  all  other  matters  of  organization  and  all 
the  details  of  procedure  to  the  House  itself.  With  the 
wealth  of  precedents  available  in  the  journals  of  con- 
temporary state  legislatures,  there  was  really  no  definite 
reason  why  the  first  Representatives  should  not  have 
formulated  rules  of  procedure  which  would  enable  them 
to  go  ahead  smoothly  and  rapidly  in  the  transaction  of 
business.  They  all  knew,  or  could  easily  discover,  how 
laws  were  made  by  their  friends  at  home.  And  yet,  in 
spite  of  all  their  experience,  and  their  really  remarkable 
opportunities  for  observation,  they  wasted  time  for  want 
of  good  methods.  At  the  end  of  two  months,  Madison 
wrote  that  "in  every  step  the  difficulties  arising  from 
novelty  are  severely  experienced,  and  are  an  ample  as 
well  as  just  source  of  apology.  Scarcely  a  day  passes 
without  some  striking  evidence  of  the  delays  and  per- 
plexities springing  merely  from  the  want  of  precedents. 
Time  will  be  a  full  remedy  for  this  evil;  and  will  I  am 
persuaded,  evince  a  greater  facility  in  legislating  uni- 
formly for  all  the  States  than  has  been  supposed  by  some 
of  the  best  friends  of  the  Union."6 

The  cause  of  that  uncertainty,  or  lack  of  sure- 
footedness,  was  probably  the  fact  that  the  members 
looked  upon  themselves  as  parts  of  an  entirely  new 

*  Ames,   Works,  I,  44-45.     The  ' '  first  Congress ' '  referred  to  was  the 
Continental  Congress. 
6  Hid.,  I,  50. 
«  Madison,  Writings,  V,  373. 


THE  FIRST  CONGRESS  127 

system.7  They  seem  to  have  preferred  to  adopt  a  very 
few  familiar  principles,  just  enough  to  make  possible 
the  transaction  of  business,  and  to  wait  for  further  rules 
until  time  and  experience  should  reveal  their  exact  needs. 
It  is  not  strange  that  the  members  should  be  impressed 
with  the  importance  of  their  position,  and  should  go 
slowly  in  order  to  avoid  possible  errors. 

The  outstanding  feature  of  procedure  in  the  House 
was  the  important  part  played  by  the  committee  of  the 
whole.  Much  of  the  business  in  the  House  of  Delegates 
of  Virginia  was  transacted  in  that  way,  and  the  Vir- 
ginians were  influential  enough  to  impose  their  methods 
upon  the  federal  House,  in  spite  of  the  grumbling 
opposition  on  the  part  of  members  from  other  sections. 
The  rules  were  so  framed  as  to  permit  almost  unre- 
stricted freedom  of  debate,8  and  every  member  was  given 
unlimited  opportunity  to  satisfy  his  own  craving  to  talk, 
and  incidentally  to  convince  his  watchful  constituents 
at  home  that  he  was  not  neglecting  their  interests.  As 
a  matter  of  fact,  this  extensive  use  of  the  informal 
session  was  not  wholly  bad  from  the  democratic  point 
of  view.  The  House  was  so  small  that  it  was  a  genuine 
deliberative  assembly,  in  which  national  questions  could 
be  discussed  and  considered  from  every  possible  angle. 
It  was  in  committee  of  the  whole  that  Congress  worked 
out  the  first  tariff  bill,  and  also  the  main  outlines  of 
such  important  measures  as  the  laws  organizing  the 
executive  departments.9  After  the  general  principles 

7  Annals,  1  Cong.  1,  383-384.  In  introducing  the  question  of  new  execu- 
tive departments,  Boudinot  of  New  Jersey  said  that  the  departments  under 
the  "late  constitution"  were  not  to  be  considered  as  models,  because  of 
the  changes  brought  about  by  the  new  constitution,  and  because  of  the 
''new  distribution  of  legislative,  executive,  and  judicial  powers."  This 
idea  of  a  clean  slate  may  have  influenced  Congress. 

a  Ibid.,  1  Cong.  1,  99,  101. 

e  Ibid.,  1,  106-109,  125-126,  144-147,  368,  370,  383-384,  399,  412,  427- 
428;  1  Cong.  3,  1888-1890. 


128         DEVELOPMENT  OF  LAWMAKING 

were  once  determined,  select  committees  would  be 
appointed  to  work  out  the  details,  and  to  frame  bills 
in  accordance  with  the  decision  already  agreed  upon  in 
committee  of  the  whole.10 

The  chief  weakness  in  the  system  was  that  it  pre- 
supposed a  higher  general  level  of  intelligence  among 
the  members  than  was  actually  to  be  found.  There  were 
a  few  leaders,  but  only  a  few,  who  could  carry  on  a 
profitable  and  illuminating  discussion  of  general  prin- 
ciples ;  the  rank  and  file  were  speedily  lost  in  a  fruitless 
if  not  inane  debate  over  minor  details.  Naturally  the 
more  brilliant  members  were  disgusted  at  the  waste  of 
time  necessarily  attendant  upon  the  process.  To  quote 
Ames  again,  it  was  "certainly  a  bad  method  of  doing 
business.  Too  little  use  is  made  of  special  committees. 
Virginia  is  stiff  and  touchy  against  any  change  of  the 
committee  of  the  whole.  .  .  .  They  are  for  watching  and 
checking  power;  they  see  evils  in  embryo;  are  terrified 
with  possibilities,  and  are  eager  to  establish  rights,  and 
to  explain  principles,  to  such  a  degree,  that  you  would 
think  them  enthusiasts  and  triflers."11 

The  same  active  commentator  also  described  a  session 
of  the  committee  of  the  whole  at  work  on  a  bill.  "We 
consider  it  in  committee  of  the  whole,  and  we  indulge 
a  very  minute  criticism  upon  its  style.  We  correct 
spelling,  or  erase  may  and  insert  shall,  and  quiddle  in  a 
manner  which  provokes  me.  A  select  committee  would 
soon  correct  little  improprieties.  Our  great  committee 
is  too  unwieldly  for  this  operation.  A  great,  clumsy 
machine  is  applied  to  the  slightest  and  most  delicate 
operations — the  hoof  of  an  elephant  to  the  strokes  of 

10  Annals,  1  Cong.  1,  125,  258,  381,  412;  1  Cong.  2,  1094.     Considerable 
work  was  done  by  these  select  committees,  especially  after  the  first  session. 
Congress  was  in  session  from  ten  to  three,  "before  and  after  which  the 
business  is  going  on  in  committees. ' '     Washington,  Writings,  XI,  484. 

11  Ames,  Works,  I,  64. 


THE  FIRST  CONGRESS  129 

mezzotinto.  I  dislike  the  committee  of  the  whole  more 
than  ever.  We  could  not  be  so  long  doing  so  little,  by 
any  other  expedient. 'm 

In  view  of  their  prominence  in  the  state  legislatures, 
it  might  naturally  be  supposed  that  standing  committees 
would  be  called  into  being  to  transact  much  of  the  routine 
work  of  Congress.  Such,  however,  was  not  the  case. 
To  be  sure  there  was  a  committee  of  elections,13  appointed 
to  inspect  the  credentials  of  members,  and  to  investigate 
facts  in  connection  with  contested  elections,  but  strictly 
speaking  it  performed  no  legislative  work.  Then,  about 
two  months  before  the  end  of  the  first  session,  a  standing 
committee  of  ways  and  means  was  appointed,  but  its 
career  was  exceedingly  brief.  Finance  committees  in 
many  of  the  states  were  familiar  institutions,  and 
naturally  members  who  were  acquainted  with  them 
suggested  that  the  federal  House  would  do  well  to 
provide  itself  with  similar  machinery.  The  question 
arose  during  the  debate  on  the  bill  for  organizing  a 
treasury  department.  Livermore  was  opposed  to  giving 
any  single  official  authority  to  submit  plans  for  raising 
revenue.  If  the  House  itself  was  not  in  a  position  to 
do  all  such  work,  it  ought  to  appoint  a  committee  for 
that  purpose.  Gerry  agreed  that  a  committee  of  ways 
and  means  would  be  of  great  value  in  the  transaction 
of  financial  business.14  A  month  later  Fitzsimons  urged 
definite  action  in  the  matter.  "If  we  wish  to  have  more 
particular  information  on  these  points,"  he  suggested 
while  speaking  of  the  revenue,  "we  ought  to  appoint  a 
Committee  of  Ways  and  Means,  to  whom,  among  other 
things,  the  estimate  of  supplies  may  be  referred,  and 
this  ought  to  be  done  speedily  .  .  ."  His  suggestion 
met  with  approval,  and  a  committee  of  ten  was  ap- 

12  Ames,  Works,  I,  61. 
is  Annals,  1  Cong.  1,  122. 
i*  Hid.,  621,  625. 


130         DEVELOPMENT  OF  LAWMAKING 

pointed.15  This  appointment  was  made  on  July  24,  1789. 
On  September  11,  Alexander  Hamilton  entered  upon  his 
work  as  Secretary  of  the  Treasury.16  On  September  17, 
the  committee  of  ways  and  means  was  "discharged  from 
further  proceeding  on  the  business  referred  to  them," 
and  it  was  " referred  to  the  Secretary  of  the  Treasury, 
to  report  thereon. >m  Henceforth  there  was  hardly  a 
mention  of  such  a  committee  in  Congress  until  December, 
1795,  when  Gallatin  secured  the  appointment  of  the 
permanent  committee. 

This  transfer  of  authority  from  a  committee  of  the 
House  to  Alexander  Hamilton  suggests  the  theory  that 
Congress  may  have  considered  the  newly  created  heads 
of  departments  as  instruments  not  only  of  the  president, 
but  of  the  legislature  as  well.  If  that  was  the  case, 
standing  committees  would  of  course  be  superfluous, 
because  there  was  no  particular  need  for  a  duplication 
of  machinery. 

In  the  case  of  the  departments  of  Foreign  Affairs,  or 
of  State,  as  it  was  called  shortly  after,  and  of  War,  the 
statutes  creating  them  contain  nothing  to  warrant  such 
an  assumption.  The  secretaries  of  those  departments 
were  executive  officials,  required  to  perform  whatever 
duties  the  president  might  entrust  to  them.  The  laws 
nowhere  suggest  that  Congress  enjoyed  any  authority 
to  give  them  orders,  or  to  assign  any  of  their  duties.18 

Because  of  the  intimate  relationship  between  Hamilton 
and  Congress,  the  status  of  the  Treasury  department 
merits  a  more  careful  examination.  The  Constitution 
itself  conferred  upon  the  House  alone  full  power  to 
originate  revenue  bills,  and  that  privilege  was  very 
jealously  guarded  by  thoroughgoing  democrats.  The 

is  Annals,  1  Cong.  1,  696-697. 

16  Learned,  The  President's  Cabinet,  p.  118. 

17  Annals,  1  Cong.  1,  929. 

is  Statutes  at  Large,  I,  28,  49. 


THE  FIRST  CONGEESS  131 

establishment  of  the  department  gave  rise  to  a  lengthy 
debate.  Boudinot  of  New  Jersey  brought  up  the  question 
in  the  House,  and  recommended  a  law  providing  for  a 
"Secretary  of  Finance,'7  whose  duties  should  be  to 
superintend  the  treasury  and  finances  of  the  country, 
and  in  particular  to  look  after  the  public  debt,  revenue, 
and  expenditure.  With  reference  to  revenue,  Boudinot 
advised  that  the  new  official  be  given  authority  to  i  t  form 
and  digest  plans  for  its  improvement. ' m  In  the  mass 
of  argument  called  forth  by  this  seemingly  sound 
recommendation  two  different  points  of  view  stand  out 
very  clearly.  The  Federalists,  if  the  name  may  be 
applied  to  them  as  early  as  this,  approved  of  Boudinot 's 
recommendation.  They  pointed  out  the  manifest  ad- 
vantages in  having  a  single,  expert  official  in  charge,  who 
would  be  ready  at  any  time  to  lay  carefully  matured 
plans  before  Congress.20 

The  opponents  of  the  measure  argued  that  in  permit- 
ting the  secretary  to  "  report "  plans,  the  House  would 
be  guilty  of  giving  up  power  definitely  conferred  upon 
it  by  the  Constitution,  and  also  that  it  would  make  the 
official  altogether  too  powerful.  One  of  Madison's 
colleagues,  Page,  thought  the  secretary  might  be  per- 
mitted to  prepare  estimates,  "but  to  go  any  further 
would  be  a  dangerous  innovation  upon  the  constitutional 
privilege  of  this  House.  ..."  It  would  establish  a 
precedent,  which  might  be  extended  until  all  the  "min- 
isters of  the  Government"  might  be  admitted  to  the 
floor  to  explain  and  support  their  plans,  "thus  laying  the 
foundation  for  an  aristocracy  or  a  detestable  mon- 
archy."21 Tucker  agreed  with  Page.  He  thought  that 
the  granting  of  the  proposed  authority  to  report  plans 
would  "abridge  the  particular  privilege  of  this  House." 

i»  Annals,  1  Cong.  1,  383-384. 

20  Hid.,  617,  619.    Ames,  Works,  I,  56. 

21  Annals,  1  Cong.  1,  615-616. 


132         DEVELOPMENT  OF  LAWMAKING 

Certainly  revenue  bills  could  not  be  said  to  originate 
in  the  House  if  they  were  reported  by  the  "Minister  of 
Finance. ' '  If  the  plans  were  to  come  from  the  executive 
at  all,  they  should  be  sent  in  directly  by  the  president, 
and  not  by  a  secretary.22 

Some  of  these  fears  were  overcome  by  an  amendment, 
which  limited  the  secretary's  authority  to  the  prepara- 
tion of  plans.  He  was  not  given  the  right  to  "report" 
them.  Moreover,  in  no  part  of  the  act  was  the  term 
"executive"  department  used.  Then,  too,  there  seemed 
to  be  a  general  feeling  that  such  an  official  could  easily 
be  held  in  restraint.  Madison  wrote  that  a  finance 
department  was  under  consideration,  "to  be  under  one 
head,  though  to  be  branched  out  in  such  a  manner  as  will 
check  the  administration."23  Likewise  Benson  favored 
a  single  head,  rather  than  a  board,  but  he  "would  have 
the  principal  officer  well  checked  in  the  execution  of  his 
trust."24 

As  finally  drawn,  the  statute  was  conspicuously 
different  from  those  which  created  the  other  two  depart- 
ments. It  required  the  Secretary  of  the  Treasury  "to 
digest  and  prepare  plans  for  the  improvement  and 
management  of  the  revenue,  and  for  the  support  of  the 
public  credit;  to  prepare  and  report  estimates  of  the 
public  revenue,  and  the  public  expenditures;  ...  to 
make  report,  and  give  information  to  either  branch  of 
the  legislature,  in  person  or  in  writing  .  .  .  respecting 
all  matters  referred  to  him  by  the  Senate  or  House  of 
Kepresentatives,  or  which  shall  appertain  to  his  office; 
and  generally  to  perform  all  such  services  relative  to 
the  finances,  as  he  shall  be  directed  to  perform."25 

It  seems  evident  that  Congress  planned  to  create  an 

22  Annals,  1  Cong.  1,  616 

23  Madison,  Writings,  V,  371. 
z*  Annals,  1  Cong.  1,  384. 

25  Statutes  at  Large,  I,  65-67. 


THE  FIRST  CONGRESS  133 

agent,  not  for  the  executive,  but  for  itself.  Both  by 
actual  phraseology  and  by  implication  the  head  of  this 
department  was  subject  to  the  legislature,  and  nowhere 
does  the  statute  confer  upon  the  president  authority 
to  assign  duties  to  the  Secretary  of  the  Treasury.  Such 
being  the  case,  it  is  easy  to  explain  the  disappearance  of 
the  committee  of  ways  and  means.  A  single  official, 
properly  controlled,  would  be  far  more  useful  and  far 
more  efficient  than  a  committee,  the  personnel  of  which 
might  be  subject  to  change  every  two  years.  In  a 
cabinet  meeting  Hamilton  once  observed  "that  as  to  his 
department  the  act  constituting  it  had  made  it  subject 
to  Congress  in  some  points,  but  he  thot  himself  not  so 
far  subject  as  to  be  obliged  to  produce  all  the  papers 
they  might  call  for.'"6  That  interpretation  was  one  of 
Hamilton's  own,  not  warranted  by  the  wording,  and 
certainly  inconsistent  with  the  general  tone  of  the  law 
itself. 

Nearly  thirty  years  after  the  law  was  passed  Monroe 
asserted  that  it  was  drawn  "by  A.  Hamilton,  who  was 
himself  to  be  the  Secretary,  and  whose  object  was  to 
establish  a  direct  intercourse  between  the  members  of 
the  legislature  and  himself  for  his  own  purposes."27 
Gallatin  also  had  occasion  to  refer  to  the  differences  in 
these  laws  creating  the  departments,  and  he  thought  that 
the  distinction  was  probably  made  in  order  to  give 
"Congress  a  direct  power,  uncontrolled  by  the  execu- 
tive" over  financial  matters.  He  did,  however,  query 
whether  "this  remarkable  distinction,  which  will  be 
found  to  pervade  all  the  laws  relative  to  the  Treasury 
Department,  was  not  introduced  to  that  extent  in  order 

26  Jefferson,  Writings,  I,  190. 

27  J.  Q.  Adams,  Memoirs,  IV,  217.     Mr.  Learned  quotes  this  statement, 
with   the   comment   that   it   is  not   worthy   of   very  much   credence.       The 
President's  Cabinet,  p.  109. 


134         DEVELOPMENT  OF  LAWMAKING 

to  give  Mr.  Hamilton  a  department  independent  of  every 
executive  control."28 

These  statements  seem  to  have  been  nothing  more  than 
theories  of  Gallatin  and  Monroe,  and  unless  more  evi- 
dence appears  they  cannot  be  taken  very  seriously.  If 
Hamilton's  activities  as  party  leader  throw  any  light  on 
this  subject,  it  might  be  safe  to  say  positively  that  he 
did  not  draft  the  bill.  Instead  of  giving  Congress 
authority  over  his  office,  he  would  have  been  far  more 
likely  to  reverse  the  relationship. 

Although  the  departments  of  State  and  of  War  were 
not  legally  subject  to  Congressional  orders,  they  together 
with  the  Treasury  department  were  called  upon  to  par- 
ticipate in  the  work  of  legislation.  Instead  of  being 
referred  to  standing  committees,  as  would  have  been  the 
case  in  state  legislatures,  some  routine  business  was 
turned  over  to  cabinet  officials.  In  dealing  with  certain 
matters  recommended  by  Washington  in  one  of  his 
speeches  to  Congress,  the  House  asked  the  Secretary  of 
the  Treasury  to  prepare  and  report  plans  for  the 
encouragement  of  manufactures,  while  a  similar  request 
concerning  a  system  of  weights  and  measures  was  sent 
to  the  Secretary  of  State.29  Not  long  afterward  Hamilton 
laid  before  the  House  a  report  from  the  postmaster 
general,  together  with  a  bill  drawn  by  the  same  official. 
Although  one  of  the  members  took  exception  to  this 
practice  of  receiving  bills  from  the  heads  of  departments, 
the  custom  was  not  abandoned.30  At  about  the  same  time 
Madison  wrote  that  the  chief  measures  before  Congress 
were  "the  plans  of  revenue  and  the  Militia,  reported  by 

28  Gallatin,  Works,  I,  66-67. 

29  Annals,  1  Cong.   2,  1095.     In   dealing  with  other  matters  mentioned 
in  the  speech,  the  House  appointed  select  committees  to  bring  in  bills  in 
accordance  with  recommendations  made. 

so  Hid.,  2,  1114. 


THE  FIRST  CONGRESS  135 

Hamilton  and  Knox."31  Later,  Jefferson  as  Secretary 
of  State,  drafted  a  bill  "to  promote  the  progress  of  the 
useful  arts,"  which  was  introduced  into  the  House  on 
February  7,  1791.32 

In  addition  to  depending  upon  the  secretaries  for  the 
drafting  of  an  occasional  bill,  the  House  also  called  upon 
them  to  deal  with  certain  petitions.  In  the  state  legis- 
latures such  work  would  have  gone  to  standing  com- 
mittees, but  Congress  seemed  to  feel  that  the  head  of 
a  department  would  answer  the  purpose  just  as  well  as 
a  committee.33  Surely  if  it  could  use  the  heads  of  depart- 
ments in  this  way,  the  House  might  well  dispense  with 
standing  committees. 

Such  a  loose- jointed  organization  as  this  would  work 
smoothly  only  under  certain  conditions,  which  are  seldom 
found  in  any  legislative  body.  If  they  expect  to  evolve 
the  main  outlines  of  important  measures  in  committee 
of  the  whole,  all  the  members  must  work  together  in  a 
spirit  of  genuine  cooperation  and  friendliness.  Or,  to 
put  it  in  another  way,  for  the  successful  operation  of 
Congress  under  that  kind  of  procedure,  there  must  be 
a  total  absence  of  political  parties. 

These  conditions  prevailed  for  a  time  in  the  first 
Congress,  so  that  there  was  very  little  factional  bitter- 
ness or  organized  party  effort.  Such  a  striking  pecu- 
liarity naturally  attracted  the  attention  of  the  members, 
some  of  whom  felt  impelled  to  report  the  phenomenon 
to  their  friends  at  home.  One  southern  member  wrote 

si  Madison,  Letters,  I,  501-502. 

32  Jefferson,  Works,  V,  278-280;  Annals,  1  Cong.  3,  1937.     For  a  similar 
instance,  see  Jefferson,  Works,  V,  302-304. 

33  Petitions  referred  to  the  Secretary  of  the  Treasury:  Annals,  1  Cong.  1, 
917;   1  Cong.  2,  1395,  1413,  1522;   1  Cong.  3,  1873.     To  the  Secretary  of 
State:  1  Cong.  2,  1572.     To  the  Secretary  of  War:  1  Cong.  3,  1861,  1963; 
"Sundry  reports  from  the  Secretary  of  War,  on  petitions  referred  to  him 
were  read,  and  laid  on  the  table."     These  are  simply  examples,  not  a 
complete  list. 


136         DEVELOPMENT  OF  LAWMAKING 

that  he  "received  great  pleasure  from  observing  the 
liberality  and  spirit  of  mutual  concession  which  appear 
to  actuate  every  member  of  the  House,"  and  that  he  had 
"not  observed  the  least  attempt  to  create  a  party,  .  .  .'m 
Another  reported  that  "Much  harmony,  politeness  and 
good  humor  have  hitherto  prevailed  in  both  houses — 
our  debates  are  conducted  with  a  moderation  and  ability 
extremely  unusual  in  so  large  a  body — consisting  of  men 
under  the  influence  of  such  jarring  interests. '  "5  And 
even  Fisher  Ames,  who  allowed  nothing  to  pass  un- 
noticed, and  who  certainly  would  have  mentioned  party 
differences  if  there  had  been  any,  wrote  that  "There 
is  less  of  party  spirit,  less  of  the  acrimony  of  pride  when 
disappointed  of  success,  less  personality,  less  intrigue, 
cabal,  management,  or  cunning  than  I  ever  saw  in  a 
public  assembly.  .  .  .  Measures  are  so  far  from  being 
the  product  of  caucussing  and  cabal,  that  they  are  not 
sufficiently  preconcerted. ' m 

These  statements,  it  should  be  noticed,  refer  to  the 
early  part  of  the  session,  before  the  Congressmen  had 
fully  recovered  from  the  effects  of  a  strange  environ- 
ment. The  first  actors  on  a  new  stage,  mindful  of  the 
dignity  of  their  position,  and  perhaps  somewhat  in  awe 
of  one  another,  would  naturally  display  not  only  great 
consideration,  but  even  mutual  respect.  Familiarity 
hardly  gets  time  to  breed  contempt  in  the  short  space 
of  two  months. 

It  was  not  so  much  the  fault  of  the  individual  members, 
however,  as  of  the  very  nature  of  the  federal  Congress 
itself  that  this  calm  could  not  endure.  Sectional  differ- 
ences, real  and  imaginary,  to  say  nothing  of  widely 
divergent  theories  of  government,  were  bound  to  produce 

a*  McKee,  Life  of  Iredell,  II,  258. 

35  "South  Carolina  Federalists,"  Am.  Hist.  Eev.,  XIV,  776. 

36  Ames,  Works,  I,  61-62. 


THE  FIEST  CONGRESS  137 

X 


dissensions,  and  from  factional  strife  thus  generated  it 
is  but  a  short  step  to  party  organization  with  all  its 


accompanying  cabals  and  intrigues.  Men  capable  of 
drawing  conclusions  from  very  evident  facts  could  not 
remain  blind  to  approaching  changes.  It  is  not  sur- 
prising to  find  that  even  while  he  was  rejoicing  at  the 
absence  of  party  quarrels,  Fisher  Ames  was  carefully 
analyzing  the  forces  of  disruption  already  at  work.  He 
found,  it  seems,  that  "  Three  sorts  of  people  are  often 
troublesome.  The  anti-federals,  who  alone  are  weak,  and 
some  of  them  well  disposed.  The  dupes  of  local  preju- 
dices, who  fear  eastern  influences,  monopolies,  navigation 
acts.  And  lastly  the  violent  republicans,  as  they  think 
fit  to  style  themselves,  who  are  new  lights  in  politics; 
who  would  not  make  the  law,  but  the  people,  king;  who 
would  have  a  government  all  checks;  who  are  more 
solicitous  to  establish,  or  rather  to  expatiate  upon,  some 
high-sounding  principle  of  republicanism,  than  to  protect 
property,  cement  the  union,  and  perpetuate  liberty. 
'This  new  Constitution,'  said  one  Abner  Fowler,  in  1787, 
'will  destroy  our  liberties.  We  shall  never  have  another 
mob  in  the  world/  This  is  the  republicanism  of  the 
aristocracy  of  the  southern  nabobs.  It  breaks  out  daily, 
tinctures  the  debates  with  the  hue  of  compromise,  makes 
bold,  manly,  energetic  measures  very  difficult.  The 
spectre  of  Patrick  Henry  haunts  their  dreams.  They 
accuse  the  eastern  people  with  despotic  principles,  and 
take  no  small  consequence  to  themselves  as  the  defenders 
of  liberty.'"7  Ames'  letter  merely  indicates  that  a 
change  might  be  expected  at  any  moment.  Other 
accounts  prove  that  differences  soon  made  themselves 
evident.  In  the  course  of  another  month  several  members 
had  complaints  to  make  about  party  controversies. 
Senator  Butler,  for  instance,  of  South  Carolina,  wrote 

37  Ames,  Works,  I,  62. 


138         DEVELOPMENT  OF  LAWMAKING 

that  lie  was  very  much  disappointed  with  the  new 
government.  ' '  I  find, ' '  he  wrote,  * '  locality  and  partiality 
reign  as  much  in  our  Supreme  Legislature  as  they  could 
in  a  county  court  or  State  legislature.  Never  was  a  man 
more  egregiously  disappointed  than  I  am.  I  came  here 
full  of  hopes  that  the  greatest  liberality  would  be  exer- 
cised ;  that  the  consideration  of  the  whole,  and  the  general 
good,  would  take  the  place  of  every  other  object;  but 
here  I  find  men  scrambling  for  partial  advantages,  State 
interests,  and  in  short,  a  train  of  those  narrow,  impolitic 
measures  that  must,  after  a  while,  shake  the  Union  to  its 
very  foundation.'"8 

When  the  question  of  the  permanent  residence  came 
up,  intrigues  began  in  earnest.89  One  disconsolate 
member  complained  that  "amendments  in  Congress  are 
as  much  wanted  as  in  the  Constitution."40  A  year  later 
whatever  regard  the  members  may  have  had  for  each 
others'  feelings  had  pretty  much  disappeared.  By  that 
time  "violence,  personality,  low  wit,  violation  of  order, 
and  rambling  from  the  point"  characterized  at  least  one 
debate.  Apparently  the  discussion  took  such  a  bitter 
turn  that  the  papers  did  not  venture  to  report  in  full, 
and  we  are  again  indebted  to  Ames  for  a  vivid  descrip- 
tion. "The  Quakers  have  been  abused,  the  eastern 
States  inveighed  against,  the  chairman  rudely  charged 
with  partiality.  Language  low,  indecent,  and  profane 
has  been  used;  wit  equally  stale  and  wretched  has  been 
attempted;  in  short,  we  have  sunk  below  the  General 
Court  in  the  disorderly  moment  of  a  bawling  nomination 
of  a  committee,  or  even  of  country  (rather  Boston)  town 
meeting.  The  southern  gentry  have  been  guided  by  their 
hot  tempers,  and  stubborn  prejudices  and  pride  in  regard 

38  McBee,  Life  of  Iredell,  II,  263-265. 

39  Ames,  Works,  I,  69. 

40  Pickering  MSS.,  XIX,  172. 


THE  FIRST  CONGRESS  139 

to  southern  importance  and  negro  slavery  .  .  .  they  have 
shown  an  uncommon  want  of  prudence  as  well  as  mod- 
eration; they  have  teased  and  bullied  the  House  out  of 
their  good  temper,  and  driven  them  to  vote  in  earnest 
on  a  subject  which  at  first  they  did  not  care  much 
about.  >m 

The  later  debate  on  the  permanent  residence  exasper- 
ated the  young  member  from  Massachusetts.  "I  care 
little  where  Congress  may  sit.  I  would  not  find  fault 
with  Fort  Pitt,  if  we  could  assume  the  debts,  and  proceed 
in  peace  and  quietness.  But  this  despicable  grogshop 
contest,  whether  the  taverns  of  New  York  or  Philadelphia 
shall  get  the  custom  of  Congress,  keeps  us  in  discord 
and  covers  us  all  with  disgrace.  ...  It  is  barely  possible 
for  any  business  to  be  more  perplexed  and  entangled 
than  this  has  been.  We  have  fasted,  watched,  and 
prayed  for  the  cause.  I  never  knew  so  much  industry 
and  perseverance  exerted  for  any  cause.  Mr.  Sedgwick 
is  a  perfect  slave  to  the  business.  Mr.  Goodhue  frowns 
all  day  long,  and  swears  as  much  as  a  good  Christian 
can,  about  the  perverseness  of  Congress."  Then  with 
reference  to  finance  he  wrote:  "We  are  passing  the 
ways  and  means  bill.  We  do  so  little  and  behave  so  ill 
in  doing  it  that  I  consider  Congress  as  meriting  more 
reproach  than  has  yet  been  cast  upon  it."42 

This  comparatively  sudden  appearance  of  partisan 
differences  made  possible  and  even  necessary  the  creation 
of  a  well-organized  legislative  machine.  No  faction 
could  afford  to  sit  idly  by  and  rely  upon  a  discussion  in 
committee  of  the  whole  to  evolve  and  formulate  its 

41  Ames,  WorTcs,  I,  75.    Cf.  Maclay,  Journal,  p.  222.     '  <  The  House  have 
certainly  greatly  debased  their  dignity,  using  base,  invective,  indecorous 
language;   three  or  four  up  at  a  time  manifesting  signs  of  passion,  the 
most  disorderly  wanderings  in  their  speeches,  telling  stories,  private  anec- 
dotes,'' etc. 

42  Ames,  WorTcs,  I,  80. 


140         DEVELOPMENT  OF  LAWMAKING 

favorite  measures.  Still  less  could  it  hope  to  secure 
the  enactment  of  its  policies  without  a  concerted  effort 
to  win  votes.  The  fear  that  their  opponents  might 
resort  to  those  unparliamentary  but  extremely  effective 
tactics  already  well  known  to  the  state  legislatures 
compelled  them  all  to  resort  to  the  same  methods. 
Instead  of  waiting  for  action  in  committee  of  the  whole, 
the  party  leaders  would  decide  upon  their  policies  and 
draft  bills  in  accordance  therewith  in  party  councils. 
The  scene  of  actual  legislation  would  be  shifted  from 
Congress  to  the  caucus. 

The  Federalists  were  the  first  to  profit  by  this  division 
of  the  House  into  party  groups,  partly  because  they  were 
in  the  majority,  but  more  especially  because  they  enjoyed 
the  tremendous  advantage  of  able  leadership.  Tempera- 
mentally more  of  a  philosopher  than  a  general,  Madison 
himself  was  never  able  really  to  command  a  majority, 
while  Jefferson,  the  creator  of  the  Republican  party,  was 
still  laboring  under  the  delusion  that  as  an  executive 
official  he  must  keep  clear  of  Congress.  Opposed  to  him 
was  the  great  Federalist  chieftain,  Alexander  Hamilton, 
who  stood  without  a  peer  as  an  organizer  and  director 
of  party  forces.43  His  ready  intelligence  grasped  the 
\/truth  at  once  that  Jefferson  spent  more  than  ten  years 
in  learning :  that  not  even  the  Constitution  of  the  United 
States  could  keep  apart  two  such  inseparable  factors  in 
government  as  executive  and  legislature.  His  official 
position  naturally  brought  him  into  close  contact  with 
Congress,  and  enabled  him  to  see  that  such  a  loosely 
organized  body  was  simply  waiting  for  a  commander. 
The  mere  fact  that  he  was  not  a  member  was  not  the 
slightest  obstacle  to  him,  because  it  was  easier  to  domi- 
nate Congress  indirectly,  through  the  medium  of  a 
political  party,  than  directly  from  the  floor. 

43  Adams,  Gallatin,  p.  268. 


THE  FIRST  CONGRESS  141 

By  the  winter  of  1790,  Hamilton  was  attracting  atten- 
tion because  of  his  influence  over  Congress.  In  March 
of  that  year  in  the  course  of  a  debate  on  an  appropriation 
bill,  one  Jackson  moved  an  amendment,  providing  for 
an  appropriation  for  clearing  the  Savannah  River.  In 
reply  to  objections  made  to  his  amendment,  he  remarked 
that  "according  to  the  ideas  of  some  gentlemen,  the 
House  had  no  right  to  add  to  the  appropriations  pro- 
posed by  the  Secretary,"  and  that  "according  to  this 
doctrine,  the  whole  business  of  Legislation  may  as  well 
be  submitted  to  him,  so  in  fact  the  House  would  not  be 
the  Representatives  of  their  constituents,  but  of  the 
Secretary. ' m 

In  the  diary  of  Senator  Maclay  there  are  several  brief 
but  pithv  comments  which  reveal  both  the  extent  and 
the  nature  of  Hamilton's  power  in  Congress.  "It  really 
seems,"  he  wrote,  "as  if  a  listlessness  or  spirit  of  lazi- 
ness pervaded  the  House  of  Representatives.  Anything 
which  comes  from  a  Secretary  is  adopted  almost  without 
any  examination."  Referring  to  the  bank  bill,  he  com- 
plained to  the  pages  of  his  diary  that  "It  is  totally  in 
vain  to  oppose  this  bill."  "Nothing,"  he  wrote,  "is 
done  without  him."  Sometimes  the  democratic  senator 
seemed  ready  to  throw  up  his  hands  in  despair  at  the 
total  inability  of  the  opposition  to  stem  the  tide  of 
Hamiltonian  legislation.  Some  such  state  of  mind  must 
have  been  responsible  for  the  following:  "Were  Elo- 
quence personified  and  reason  flowed  from  her  tongue, 
her  talents  would  be  in  vain  in  our  assembly;  .  .  . 
Congress  may  go  home.  Mr.  Hamilton  is  all-powerful, 
and  fails  in  nothing  he  attempts. ' )45 

Such  general  assertions  would  not  necessarily  mean 
very  much  by  themselves,  but  they  are  supplemented  by 

44  Annals,  1  Cong.  2,  1499. 

45  Maclay,  Journal,  pp.  246,  364,  385,  387. 


142         DEVELOPMENT  OF  LAWMAKING 

occasional  references  both  to  specific  instances  of  Ham- 
ilton's activity  in  Congress,  and  to  his  methods  of 
operation.  For  instance,  Maclay  mentions  four  separate 
measures,  the  assumption,  bank,  and  excise  bills,  and  a 
resolution  regarding  the  mint,  all  of  which  were  passed 
in  spite  of  opposition,  largely  through  the  influence  and 
personal  efforts  of  Hamilton  himself.46 

His  success  was  due  in  large  measure  to  his  careful 
oversight  of  the  whole  process  of  legislation.  Maclay 
even  went  so  far  as  to  assert  that  "Hamilton  prepares 
all  matters  for  his  tools."47  Then,  in  order  to  prevent 
his  measures  from  falling  into  the  hands  of  an  ill- 
disposed  select  committee  in  Congress,  the  able  secretary 
looked  after  the  appointment  of  some  committees  him- 
self.48 If  the  committee  needed  the  benefit  of  his  advice, 
he  was  ready  to  give  it,  of  course,  and  in  some  cases  he 
even  went  so  far  as  to  attend  committee  meetings,49  to 
guard  against  the  danger  of  a  slip  at  any  stage. 

After  the  preliminary  steps  had  been  taken,  and  the 
measure  was  on  its  way  through  Congress,  Hamilton 
spared  no  pains  to  secure  its  passage.  In  case  its  success 
was  doubtful,  the  measure  would  be  held  back,  until  the 
end  of  the  session  if  necessary,  or  at  least  until  a  majority 
in  its  favor  was  certain.  Referring  to  the  resolution  on 
the  mint,  Maclay  charged  that  Hamilton  "kept  back  this 
exceptionable  business  till  there  would  be  no  time  to 
investigate  it,"  and  that,  finally,  "it  was  foully  smuggled 
through."50 

46  Maclay,  Journal,  pp.  209,  355,  385,  409. 

*7  Ibid,.,  pp.  409,  389. 

*s  Ibid.,  p.  331;  "Everything,  even  to  the  naming  of  a  committee,  is 
prearranged  by  Hamilton  and  his  group  of  speculators.  .  .  ." 

w  Ibid.,  p.  385. 

so  Ibid.,  p.  409.  Cf.  208:  "  'Twas  freely  talked  of  that  the  question 
was  to  have  been  taken  this  day  on  the  assumption  of  the  State  debts,  but 
Vining,  from  the  Delaware  State,  is  come  in,  and  it  was  put  off  until  he 
would  be  prepared  by  the  Secretary,  I  suppose.  ..." 


THE  FIEST  CONGRESS  143 

One  or  two  more  quotations  throw  interesting  light 
on  Hamilton's  ceaseless  vigilance  and  activity.  "Mr. 
Hamilton  is  very  uneasy,  as  far  as  I  can  learn,  about  his 
funding  system.  He  was  here  early  to  wait  on  the 
Speaker,  and  I  believe  spent  most  of  his  time  in  running 
from  place  to  place  among  the  members.  "51 

Regarding  the  assumption  measure,  Maclay  wrote: 
"I  do  not  know  that  pecuniary  influence  has  actually 
been  used,  but  I  am  certain  that  every  other  kind  of 
management  has  been  practiced  and  every  tool  at  work 
that  could  be  thought  of.  Officers  of  Government,  clergy, 
citizens,  Cincinnati,  and  every  person  under  the  influence 
of  the  Treasury ;  Bland  and  Huger  carried  to  the  chamber 
of  Representatives — the  one  lame,  the  other  sick. 
Clymer  stopped  from  going  away,  though  he  had  leave, 
and  at  length  they  risked  the  question  and  carried  it, 
thirty-one  votes  to  twenty-six.  And  all  this  after  having 
tampered  with  the  members  since  the  22nd  of  last  month, 
and  this  only  in  committee.  .  .  .  "52 

Again  he  wrote:  "In  Senate  this  day  the  gladiators 
seemed  more  than  commonly  busy.  As  I  came  out  from 
the  Hall,  all  the  President's  family  were  there — 
Humphreys,  Jackson,  Nelson,  etc.  They  had  Vining  with 
them,  and,  as  I  took  it,  were  a  standing  committee  to 
catch  the  members  as  they  went  in  or  came  out. ' >53 

The  facts  described  above  do  not  necessarily  prove 
that  there  was  very  much  of  a  party  organization  in 
1790;  they  merely  show  that  the  Secretary  of  the 
Treasury  was  the  most  important  factor  in  Congress 
during  its  first  session.  Yet  the  main  outlines  of  party 
organization  were  clearly  visible  even  as  early  as  that. 
In  order  to  secure  harmony  and  unanimity  of  action, 

5i  Maclay,  Journal,  p.  189. 
52/Znd    p.  209. 
p.  235. 


144         DEVELOPMENT  OF  LAWMAKING 

it  was  customary  for  Hamilton's  followers  to  hold 
meetings  of  their  own.  Although  the  word  "  caucus " 
was  not  applied  to  these  party  gatherings,  they  were 
caucuses  in  all  but  name.  It  was  on  these  occasions 
apparently  that  policies  were  determined  upon,  and  it 
was  doubtless  the  assurances  obtained  in  them  that 
enabled  Hamilton  to  estimate  the  probable  vote  with 
such  exactness.  Maclay  refers  to  "the  rendezvousing  of 
the  crew  of  the  Hamilton  galley/'  or  to  a  "call  of  the 
gladiators  this  morning, "  or  again  to  the  statement 
I/of  Speaker  Muhlenberg  that  "there  had  been  a  call  of 
the  Secretary's  party  last  night."54  These  allusions  are 
made  in  a  perfectly  matter-of-fact  way,  as  though 
such  meetings  were  already  looked  upon  as  familiar 
occurrences. 

In  view  of  these  facts  it  is  not  surprising  that 
Hamilton's  financial  policy  was  adopted  in  the  face  of 
bitter  opposition.  The  Federalists  were  well  organized 
and  intelligently  directed  by  a  masterful  leader,  while 
at  first  the  clhaotic  group  of  country  gentlemen,  the 
followers  of  Madison  and  Jefferson,  could  do  nothing 
but  growl  and  complain  of  corruption.  From  their  point 
of  view  such  success  as  Hamilton  enjoyed  could  not  be 
honestly  won. 

When  he  was  complaining  about  the  difficulties  due  to 
want  of  precedents,  Madison  was  not  aware  of  the  actual 
nature  of  the  trouble  with  Congress.  The  real  need  was 
not  more  rules,  but  more  driving  power.  That  was 
furnished  by  the  Hamiltonian  or  Federalist  party 
organization,  and  thus  the  gap  in  the  Constitution  was 
bridged  over.  The  change  that  had  taken  place  was  of 
such  nature  as  to  fill  with  unpleasant  forebodings  the 
democratic  minds  of  the  "new  lights  in  politics."  One 
of  their  ideals  was  shattered  before  the  new  govern- 

54  Maclay,  Journal,  pp.  208,  227,  235. 


THE  FIRST  CONGRESS  145 

ment  was  even  two  years  old.  Instead  of  being  a  forum, 
where  every  member  was  a  peer  and  no  man  led,  where 
great  principles  of  government  were  evolved  through  the 
give  and  take  of  unrestricted  discussion,  Congress  as 
such  had  become  in  effect  a  mere  ratifying  body.  The 
real  work  of  legislation  was  put  in  shape,  not  in  the 
legislature,  but  in  secret  session  of  the  majority  party. 
In  this  organization,  unknown  to  the  Constitution  and 
beyond  the  reach  of  the  rules  of  either  chamber,  the 
executive  could  work  with  the  party-following  in 
Congress,  and  secure  the  adoption  of  a  prearranged 
program. 

This  relationship  between  executive  and  Congress 
suggests  the  theory  that  the  heads  of  departments  may 
have  considered  themselves  a  cabinet  similar  in  some 
respects  to  the  English  cabinet.  If  that  was  the  case, 
their  interest  in  drafting  bills  and  in  the  course  of  legis- 
lative activity  is  very  easily  explained.  If  Hamilton 
was  looked  upon  as  a  minister  of  finance  he  was  not  a 
self-seeking  usurper,  as  Maclay  considered  him,  a  man 
interested  in  ruling  the  House  partly  from  love  of  power, 
and  partly  from  love  of  personal  gain.  Instead  he  was 
a  part  of  the  ministry,  an  executive  official  in  charge  of 
finance.  Considering  himself  directly  responsible  for 
that  department  of  the  government,  naturally  he  would 
exert  himself  to  the  utmost  to  secure  the  adoption  of  his 
policy.  That  conception  of  the  heads  of  the  departments 
as  a  ministry  also  explains  the  attitude  of  the  Federalists 
toward  their  chief.  If  it  was  his  duty  to  lead  Congress, 
it  was  just  as  much  its  duty  to  follow.  What  was  a  party 
for  if  not  to  sanction  and  approve  the  carefully  drawn 
plans  of  its  leaders  ? 

At  that  time,  aside  from  the  respectful  manner  in 
which  the  Federalists  supported  Hamilton,  there  was 
nothing  to  justify  such  a  theory.  In  1797,  however,  the 


146         DEVELOPMENT  OF  LAWMAKING 

views  of  the  Federalists,  as  voiced  by  Fisher  Ames,  do 
permit  such  an  interpretation.  Eeferring  to  the  Bepub- 
lican  attempts  to  assert  the  power  of  the  House  at  the 
expense  of  the  executive,  he  wrote :  '  '  Our  whole  system 
is  little  removed  from  simple  democracy.  What  we  call 
the  government  is  a  phantom,  as  long  as  the  democrats 
prevail  in  the  House.  The  heads  of  departments  are 
head  clerks.  Instead  of  being  the  ministry,  the  organs  of 
the  executive  power,  and  imparting  a  kind  of  momentum 
to  the  operation  of  the  laws,  they  are  precluded  of  late 
even  from  communicating  with  the  House,  by  reports. 
In  other  countries  they  may  speak  as  well  as  act.  We 
allow  them  to  do  neither.  We  forbid  even  the  use  of  a 
speaking-trumpet ;  or,  more  properly,  as  the  Constitution 
has  ordained  that  they  shall  be  dumb,  we  forbid  them 
to  explain  themselves  by  signs.  Two  evils,  obvious  to 
you,  result  from  all  this.  The  efficiency  of  the  govern- 
ment is  reduced  to  its  minimum — the  proneness  of  a 
popular  body  to  usurpation  is  already  advancing  to  its 
maximum;  committees  already  are  the  ministers;  and 
while  the  House  indulges  a  jealousy  of  encroachment  on 
its  functions,  which  are  properly  deliberative,  it  does 
not  perceive  that  these  are  impaired  and  nullified  by  the 
monopoly  as  well  as  the  perversion  of  information  by 
these  very  committees.  The  silly  reliance  of  our  coffee- 
house and  Congress  prattlers  on  the  responsibility  of 
the  members  to  the  people,  &c.,  &c.,  is  disgraced  by  every 
page  of  the  history  of  popular  bodies.  We  expect,  con- 
fidently, that  the  House  of  Eepresentatives  will  act  out 
of  its  proper  character — for  if  it  should  act  according 
to  it,  we  are  lost. 

"Our  government  will  be,  in  fact,  a  mere  democracy, 
which  has  never  been  tolerable  nor  long  tolerated. '  '5S 

Evidently  Ames  believed  that  Congress  needed  a  guide, 

ss  Hamilton,  WorTcs,  VI,  201,  Ames  to  Hamilton. 


THE  FIRST  CONGRESS  147 

and  he  would  have  had  the  executive  act  in  that  capacity. 
Harmony  of  purpose,  unity  of  action,  and  fixed  respon- 
sibility for  measures  passed,  all  these  advantages  could 
have  been  secured  from  the  operation  of  such  a  system. 
But  the  Jeffersonians,  before  they  controlled  the  admin- 
istration, looked  upon  such  a  government  as  tyranny. 
Speaking  of  the  House  under  democratic  control,  Ames 
ironically  wrote:  "We  think  the  executive  power  is  a 
mere  pageant  of  the  representative  body — a  custos 
rotulorum,  or  master  of  the  ceremonies.  We  ourselves 
are  but  passive  instruments,  whenever  the  sovereign 
people  choose  to  speak  for  themselves.  .  .  ,"56 

The  totally  opposite  theories  of  government  held  by 
the  Federalist  and  Jeffersonian  parties  were  thus  clearly 
brought  out  in  their  attitude  toward  the  popular  branch 
of  Congress.  One  would  give  the  balance  of  power  to 
the  executive,  and  make  it  the  influential  factor  in  legis- 
lation, while  the  other  would  subject  the  executive  to 
Congressional  control.  This  difference  supplies  the  key 
to  the  history  of  Congress  for  several  years  to  come. 

so  Hamilton,  Works,  VI,  202. 


CHAPTER  IX 
REPUBLICANISM  IN  THE  HOUSE,  1792-1800 

In  spite  of  the  criticism  of  their  opponents,  the  Fed- 
eralists continued  their  work  in  the  second  Congress 
along  lines  laid  down  in  the  first.  Measures  decided 
upon  by  the  executive  were  submitted  to  the  legislature, 
and  duly  passed.  There  was  no  disregard  of  the  care- 
fully planned  policies  of  Washington  and  Hamilton,  no 
attempt  on  the  part  of  the  majority  in  the  legislature  to 
take  unto  itself  the  whole  management  of  public  affairs. 
If  there  was  any  change  at  all,  it  was  in  the  direction 
of  an  even  closer  and  more  systematic  relationship 
between  Hamilton  and  the  House  of  Representatives. 
For  example,  when  the  president  recommended  certain 
changes  in  the  excise  law,  the  Federalists  had  the  sub- 
ject referred  to  the  Secretary  of  the  Treasury,  instead 
of  to  a  committee,  on  the  ground  that  he  was  in  the  best 
position  to  furnish  the  needed  information.1 

Again,  when  money  was  needed  for  the  protection  of 
the  frontiers,  Hamilton  furnished  the  Congressional 
leaders  with  the  draft  of  a  revenue  bill  for  that  purpose.2 
Shortly  afterwards,  Sedgwick  recommended  that  the 
Secretary  of  the  Treasury  be  directed  to  suggest  to  the 
House  the  best  method  of  raising  additional  funds  for 
the  coming  year.  In  defending  his  proposition,  he 
assumed  that  the  general  principle  had  been  adopted, 
that  the  secretary  should  be  considered  responsible 

1  Annals,  2  Cong.  1,  150-152.    Even  Sedgwick,  a  Federalist,  objected  to 
this  particular  reference,  on  the  ground  that  there  was  "a  manifest  im- 
propriety and  want  of  respect  in  referring  any  part  of  the  President's 
Speech,  or  a  law  of  the  Union,  to  the  Head  of  any  particular  Department. ' ' 

2  IUd.,  349. 


REPUBLICANISM  IN  THE  HOUSE         149 

for  formulating  financial  measures  for  the  legislature. 
Without  such  help,  he  argued,  orderly  conduct  of  finance 
was  impossible.  With  the  infinite  detail  of  general  busi- 
ness to  look  after,  the  House  itself  could  not  devote  the 
necessary  time  and  attention  to  the  subject  of  revenue.3 

If  these  measures  were  evil,  from  the  Republican  point 
of  view,  the  resolution  introduced  early  the  next  session 
was  infinitely  worse.  In  the  course  of  the  debate  on 
General  St.  Glair's  defeat,  some  members  wished  to 
invite  the  Secretaries  of  War  and  the  Treasury  to  attend 
the  session,  in  order  that  they  might  furnish  the  House 
with  reliable  information.  This  proposition,  however, 
was  going  too  far  even  for  some  of  the  Federalists,  and 
the  motion  was  lost.4 

While  tlie  Federalists  were  thus  strengthening  their 
organization,  their  opponents,  hardly  a  party  as  yet, 
were  being  drawn  together  through  their  fear  of  "the 
aristocrats "  in  general,  and  their  distrust  of  Hamilton 
in  particular.  They  could  see  nothing  but  evil  in  the 
intimate  relationship  between  secretary  and  Congress. 
"Have  we,  in  truth,  originated  this  money  bill?  Do  we 
ever  originate  any  money  bill?"  vehemently  asked 
Mercer,  in  opposing  a  revenue  measure  which  Hamilton 
had  sent  into  the  House.  "It  is  in  my  judgment, "  he 
continued,  "a  direct  infraction  of  the  letter  and  spirit 
of  the  Constitution,  of  the  principles  of  free  govern- 
ment .  .  .  "  Then  he  concluded:  "I  have  long  remarked 
in  this  House,  that  the  Executive,  or  rather  the  Treasury 
Department,  was  really  the  efficient  Legislature  of  the 
country,  so  far  as  relates  to  the  revenue,  which  is  the 
vital  principle  of  Government.  The  clause  of  the  Consti- 
tution confirming  to  the  immediate  Representatives  of 

s  Annals,  2  Cong.  1,  437-440;  Sedgwick's  resolution  was  carried,  31-27, 
p.  452. 

*  Ibid.,  2  Cong.  2,  679,  684,  689. 


150         DEVELOPMENT  OF  LAWMAKING 

the  people,  in  this  House,  the  origination  of  money  bills, 
is  converted  into  a  Committeeship  of  sanction,  that  never 
withholds  its  assent.  "5 

Sedgwick's  resolution,  referred  to  above,  was  the  cause 
of  a  long  debate  on  this  same  general  question.  In  per- 
mitting the  secretary  to  submit  revenue  measures,  the 
House  was  guilty,  so  Page  charged,  of  a  "dereliction  of 
our  duty.'7  Findlay  opposed  the  resolution  because  he 
thought  it  was  "contrary  to  the  principles  of  the  gov- 
ernment, and  inconsistent  with  the  purity  and  independ- 
ence of  the  House  of  Eepresentatives,  whose  duty  it  is 
exclusively  to  prepare  or  originate  revenue  laws.  .  .  . 

1  consider  this  mode  as  a  transfer  of  Legislative  author- 
ity."8   From  their  point  of  view,  the  mode  of  taxation 
should  have  been  determined  by  the  House  itself,  and 
not  until  that  preliminary  work  had  been  done,  in  com- 
mittee of  the  whole,  could  even  the  mechanical  arrange- 
ment of  details  be  delegated  to   a  secretary  or  to   a 
committee.7 

The  line  between  the  two  groups  in  the  House  was 
sharply  drawn  on  this  issue.  Both  agreed  that  the  Con- 
stitution conferred  upon  the  House  alone  authority  to 
initiate  revenue  bills.  The  Federalists  maintained  that 
the  constitutional  provision  in  question  did  not  prevent 

6  Annals,  2  Cong.  1,  349-354. 
e  Ibid.,  441,  447. 

7  Ibid.,  349;  ibid.,  2  Cong.  2,  693,  694,  700,  704.    National  Gazette,  Apr. 
12,  Apr.  23,  Nov.  17,  1792. 

The  National  Gazette  held  that  the  proper  duties  of  the  Secretary  of 
the  Treasury  were  those  of  a  head  clerk  rather  than  of  a  minister  of 
finance.  He  should  look  after  the  subordinate  officials  in  his  department, 
apply  the  revenue  to  those  purposes  for  which  appropriations  had  been 
made,  and  give  information  concerning  those  matters  to  the  President  or 
to  Congress. 

In  addition  to  being  fundamentally  wrong  in  itself,  so  the  Kepublicans 
argued,  this  Federalist  policy  of  dependence  on  the  secretary  would  lead 
inevitably  to  corruption,  and  private  interests  rather  than  the  general 
welfare  would  become  the  determining  factor  in  public  finance.  Annals, 

2  Cong.  1,  450;  Jefferson,  Works,  VI,  103. 


REPUBLICANISM  IN  THE  HOUSE         151 

the  members  from  seeking  expert  advice  from  their  own 
agent,  the  Treasury  department.  Any  or  all  of  the  sec- 
retary's recommendations  could  be  rejected  by  Con- 
gress, so  the  liberties  of  the  people  were  in  no  way 
endangered.  Their  opponents,  however,  would  receive 
advice  from  no  one  outside  the  House.  As  the  chosen 
representatives  of  the  voters  it  was  their  duty  to  per- 
form every  task  set  before  them  properly  and  in  order. 

When  dealing  with  party  differences  such  as  this,  it 
is  always  difficult  to  estimate  to  what  extent  the  argu- 
ments are  based  on  genuine  conviction,  and  to  what 
extent  they  are  occasioned,  consciously  or  otherwise, 
by  political  expediency.  Doubtless  at  this  time  all 
of  those  Eepublican  speakers  were  absolutely  sin- 
cere. It  is  necessary  to  remember  though  that  the 
minority  very  frequently  condemns  a  measure  or  a 
method  as  unconstitutional  when  the  sole  argument 
against  it  is  that  it  has  been  successfully  used  by  a  vic- 
torious majority.  The  leaders  of  the  opposition,  some- 
times purposely,  sometimes  unconsciously,  see  in  the 
defeat  of  their  party  not  the  simple  and  inevitable  for- 
tune of  political  warfare,  but  a  very  grave  attack  upon 
the  fundamental  principles  of  the  government.  The 
weaker  side  very  frequently  poses  as  the  divinely  ap- 
pointed guardian  of  popular  rights,  and  it  voices  its 
protests  with  a  vociferousness  inversely  proportioned  to 
its  actual  power. 

Be  that  as  it  may,  the  Republicans  made  it  perfectly 
clear  that  if  they  should  ever  get  the  upper  hand  in  Con- 
gress, they  would  make  short  work  of  Hamilton,  and 
restore  to  the  House  what  they  considered  to  be  its  con- 
stitutional authority  over  finance.  When  the  Congres- 
sional elections  of  1792  assured  them  of  a  clear  majority 
in  the  next  House,  they  settled  back  to  wait  for  better 
days,  openly  announcing  their  intention  of  blocking  fur- 


152         DEVELOPMENT  OF  LAWMAKING 

ther  Federalist  action  by  every  means  in  their  power.8 
That  they  at  least  embarrassed  the  majority  is  proved 
by  the  words  of  Hamilton  himself,  whose  contempt  for 
the  Eepublicans  was  even  greater  than  their  distrust  of 
him.  "  'Tis  not  the  load  of  proper  official  business  that 
alone  engrosses  me,"  he  wrote  to  John  Jay,  "though 
this  would  be  enough  to  occupy  any  man.  'Tis  in  the 
v  extra  attention  I  am  obliged  to  pay  to  the  course  of 
legislative  manoeuvres  that  alone  adds  to  my  burden 
and  perplexity."9 

When  the  third  Congress  convened,  the  Republicans, 
with  all  the  seriousness  of  reformers  with  a  mission, 
settled  down  to  their  self-appointed  task  of  restoring  the 
constitutional  balance.  Early  in  the  session  the  secre- 
tary and  his  clerks  were  embarrassed  by  incessant  de- 
mands for  information  of  one  sort  and  another.  To  the 
Federalists,  these  repeated  calls  seemed  to  be  nothing 
but  a  scheme  to  perplex  their  chief,  and  to  discredit  him 
in  the  eyes  of  the  public.10 

On  February  24,  1794,  a  resolution  proposed  by  Giles 
was  taken  up  from  the  table,  after  a  month's  delay,  and 
passed.  According  to  Giles  himself,  the  primary  pur- 
pose of  the  manoeuvre  was  "to  ascertain  the  boundaries 
of  discretion  and  authority  between  the  Legislature  and 
the  Treasury  Department."11  On  the  same  day  the 
chaste  columns  of  the  Aurora,  as  if  by  prearrangement, 
expressed  the  hope  that  the  darkness  in  which  the  opera- 
tions of  the  Treasury  had  so  long  been  concealed  would 
very  shortly  be  cleared  up.12  The  fight  to  eject  Hamil- 
ton from  his  post  as  "minister  of  finance"  was  on. 

s  Ames,  Works,  I,  128. 

9  Hamilton,  Works,  X,  29. 

10  Gibbs,  Fed.  Adm.,  I,  127,  129. 

11  Annals,  3  Cong.  1,  463-464. 

12  General  Advertiser   (Phila.  Aurora),  Feb.  24,  1794.     Comparing  the 
obscurity  of  the  Senate  with  that  of  the  Treasury,  the  Aurora  said:  "One 
is   a  republican — the  other,   a  fiscal   darkness.     Yet   there   are  some,   who 


EEPUBLICANISM  IN  THE  HOUSE         153 

As  the  bitterness  of  the  controversy  steadily  increased, 
Hamilton  began  to  give  evidence  of  irritation.  On  March 
3,  as  he  was  reporting  on  some  petitions,  he  seized  the 
opportunity  to  ask  for  relief  from  troublesome  routine 
of  that  kind.  He  suggested  that  it  might  be  "  expedient 
to  place  the  business  of  reporting  on  petitions  in  some 
other  channel,  as  the  pressure  of  his  official  duties,  in 
addition  to  the  extra  business  of  the  inquiry  into  the 
Treasury  Department,  will  not  permit  him  to  pay  that 
seasonable  and  prompt  attention  to  these  petitions  which  , 
the  parties  expect,  and  have  just  claim  to."13 

The  first  and  most  obvious  result  of  Eepublican  con-  \/ 
trol  of  the  House  was  the  end  of  Hamilton's  influence  in 
financial  legislation.  Unable,  or  rather  unwilling,  to 
accept  propositions  regarding  revenue  from  the  Treas- 
ury, the  new  majority  was  compelled  to  evolve  some  new 
machinery  for  handling  its  financial  work.  Even  to  many 
of  them  the  idea  of  leaving  everything  to  the  committee 
of  the  whole  seemed  hardly  practicable,  so  a  select  com- 
mittee was  appointed  to  find  out  what,  if  any,  additional 
revenue  would  be  needed,  and  to  report  ways  and  means 
for  raising  the  necessary  sums.14  Even  this  seemingly 
constitutional  plan  was  looked  upon  with  suspicion  by 
some  arch-democrats.  Page,  for  instance,  said  that  of 
the  two  evils,  he  really  preferred  dependence  upon  the 
secretary.15 

The  Eepublican  contention  that  the  committee  of  the 
whole  was  the  real  revenue  raising  body  was  given  defi- 
nite expression  in  the  new  rules  adopted  for  the  next 

make  us  doubt  our  very  senses,  by  assuring  us,  that  both  the  walls  of  the 
one,  and  the  intricacy  of  the  other,  are  sufficiently  luminous  for  the  purposes 
of  government.  The  full  light  shortly  to  be  expected  from  one  opaque 
body,  (Sen)  gives  us  a  gleam  of  hope,  that  the  other  may  one  day  be  also 
elucidated. ' ' 

is  Annals,  3  Cong.  1,  475. 

i*7Znd.,  531. 

« Ibid.,  532. 


154         DEVELOPMENT  OF  LAWMAKING 

session.  Henceforth  every  proposal  regarding  a  tax  had 
to  be  discussed  in  committee  of  the  whole,  and  the  House 
itself  was  forbidden  to  make  any  increase  in  the  amount 
of  any  proposed  tax  until  such  increase  had  been  sanc- 
tioned by  the  committee  of  the  whole.  In  like  manner  all 
appropriations  were  to  be  first  moved  and  discussed  in 
committee  of  the  whole.16 

Apparently  realizing  that  so  much  opposition  would 
render  his  services  useless,  Hamilton  soon  withdrew 
from  office.  So  far  as  ejecting  him  was  concerned,  the 
Eepublican  efforts  had  been  crowned  with  success.17 

Republican  supremacy  in  the  House  seriously  inter- 
fered with  the  course  of  systematic,  orderly  legislation 
to  which  that  body  was  becoming  accustomed.  It  was  the 
Federalist  party  organization  rather  than  any  improve- 
ment in  procedure  as  such  which  had  made  possible  the 
rapid  transaction  of  business.  Once  their  generalship 
was  rendered  useless,  the  House  began  to  drift.  The 
Republicans  at  first  could  boast  neither  organization  nor 
leadership,  and  worse  still  they  had  no  constructive 
policy.  The  only  bond  which  held  them  together  was 
their  common  distrust  of  Hamilton,  and  when  his  power 
in  the  House  was  broken,  the  party  was  left  on  the  verge 
of  collapse.  "The  influence  of  the  Ex.  on  events, "  wrote 
Madison  in  May,  1794,  "the  use  made  of  them,  and  the 
public  confidence  in  the  P.  are  an  overmatch  for  all  the 

i&  Annals,  3  Cong.  2,  881. 

IT  Hamilton  left  office  in  January,  1795.  His  withdrawal  did  not,  how- 
ever, prevent  Washington  from  calling  upon  him  for  advice.  "Although 
you  are  not  in  the  administration  ...  I  must,  nevertheless  (knowing  how 
intimately  acquainted  you  are  with  all  the  concerns  of  this  country,), 
request  the  favor  of  you  to  note  down  such  occurrences  as,  in  your  opinion, 
are  proper  subjects  for  communication  to  Congress  at  this  next  session — 
and  particularly  as  to  the  manner  in  which  this  treaty  should  be  brought 
forward  to  that  body;  as  it  will,  in  any  aspect  it  is  susceptible  of  receiv- 
ing, be  the  source  of  much  declamation,  and  will,  I  have  no  doubt,  produce 
a  hot  session. "  Washington  to  Hamilton,  August  31,  1795.  Hamilton, 
Works,  VI,  34. 


REPUBLICANISM  IN  THE  HOUSE         155 

efforts  Republicanism  can  make.  The  party  of  that 
sentiment  in  the  Senate  is  completely  wrecked;  and  in 
the  H.  of  Reps  in  a  much  worse  condition  than  at  an 
earlier  period  of  the  session.  "18 

Republican  incompetence  was  most  clearly  revealed 
in  their  attempts  to  deal  with  problems  of  finance.  Their 
great  object  was  to  restore  to  the  House  its  control  over 
revenue,  but  when  they  found  themselves  confronted 
with  the  disagreeable  task  of  raising  money,  they  were 
completely  at  sea.  The  committee  appointed  March  26 
held  daily  sessions  to  work  out  plans,  but  progress  was 
very  slow.  The  " fiscal  party,"  as  Monroe  called  the 
Federalists,  urged  additional  duties  on  imports,  but  the 
"citizen  party "  favored  a  tax  on  land.  They  "seem 
backward  on  the  subject  in  every  view:"  wrote  Monroe, 
and  "regret  that  an  occasion  has  been  made  for  any 
great  increase.  .  .  .  The  fiscal  party  say  to  the  other, 
you  have  taken  the  business  from  the  Tre'y.  department, 
shew  y'rselves  equal  to  it,  &  bring  forward  some  system. 
The  latter  replies,  the  practice  of  reference  has  been 
condemned  by  the  publick  voice  as  other  things  will  be 
when  understood;  the  rejection  of  it  is  a  triumph  of  the 
people  and  of  the  constitution  over  their  &  its  abuse ;  but 
the  provision  of  taxes  is  not  more  the  duty  of  those  who 
have  been  active  in  the  rejection  than  of  those  who 
opposed  it.  If  it  is  more  the  duty  of  one  than  of  the 
other  side,  it  is  particularly  that  of  those  who  have  made 
taxes  necessary."19 

It  was  perhaps  only  natural  that  the  Republicans 
should  spend  more  time  in  bemoaning  the  need  of  taxes 
than  in  devising  ways  and  means.  But  the  depths  of 
their  ignorance  concerning  matters  political  could  not 
be  more  clearly  revealed  than  it  was  in  this  letter.  The 

is  Madison,  Writings,  VI,  216. 
is  Monroe,  Writings,  I,  290. 


X 


156         DEVELOPMENT  OF  LAWMAKING 

" citizen  party"  seemed  convinced  that  even  though  the 
Federalists  were  in  the  minority,  they  might  still  be  held 
responsible  for  doing  the  work. 

In  commenting  on  the  new  regime  the  Federalists  made 
no  attempts  to  conceal  the  depths  of  their  disgust.  ' l  The 
business  of  Congress  this  session, "  wrote  John  Adams, 
"is  dulness,  flatness,  and  insipidity  itself."20  Ames  in 
his  usual  graphic  style  complained  that:  "Congress  is 
too  inefficient  to  afford  the  stuff  for  a  letter.  No  pub- 
lic body  exists  with  less  energy  of  character  to  do  good, 
or  stronger  propensities  to  mischief.  We  are  French- 
men, democrats,  antifeds;  every  thing  but  Americans, 
and  men  of  business."21 

These  difficulties  were  due  partly  to  the  want  of  real 
organization  within  the  party  itself,  and  partly  to  the  lack 
of  effective  legislative  machinery.  The  financial  depart- 
ment in  particular  was,  to  quote  Gallatin,  "quite 
vacant."22  Since  it  was  perfectly  obvious,  even  to  the 
Eepublicans  themselves,  that  an  inactive  majority  could 
not  hope  to  retain  popular  confidence,  the  party  was 
forced  to  bestir  itself. 

With  the  appearance  of  Gallatin  in  the  House  in  the 
fourth  Congress,  everyone  looked  forward  to  an  active 
session.23  The  most  pressing  problem  was  the  financial 
one.  Although  it  had  been  created  to  act  as  the  agent 
of  the  House  in  such  matters,  the  Treasury  department 
had  come  to  be  looked  upon  with  suspicion,  and  as  a  good 
Republican  Gallatin  could  not  consent  to  a  restoration 
of  the  former  relationship.  His  political  creed  called  for 
a  more  extensive  participation  in  governmental  affairs 
by  the  House  of  Eepresentatives  than  Hamilton  con- 

20  Adams,  Letters  to  His  Wife,  II,  171. 

21  Ames,  Works,  I,  169. 

22  Adams,  Gallatin,  p.  157,  contains  Gallatin  'B  own  very  able  analysis  of 
the  situation. 

23  Gibbs,  Fed.  Adm.,  I,  297. 


EEPUBLICANISM  IN  THE  HOUSE         157 

sidered  either  necessary  or  wise.  In  Pennsylvania  Gal-<- 
latin  had  become  familiar  with  the  standing  committee 
of  ways  and  means,  and  he  secured  the  appointment  of 
a  similar  committee  in  the  national  House.24  The  com- 
mittee was  appointed  to  "superintend  the  general  opera- 
tions of  finance. "  In  particular  it  was  expected  to  re- 
port from  time  to  time  on  the  state  of  the  public  debt,  and 
on  revenue  and  expenditure.25  Henceforth,  instead  of 
depending  on  the  Secretary  of  the  Treasury  for  its  finan- 
cial policy,  the  House  would  look  to  one  of  its  own  com- 
mittees. In  this  way  the  vacancy  created  by  the  over- 
throw of  the  earlier  agent  of  the  House  was  partly  filled. 

At  about  the  same  time  two  more  standing  committees 
were  appointed,  one  on  claims,  and  the  other  on  com- 
merce and  manufactures.  The  origin  of  the  later  com- 
mittee on  post  offices  and  post  roads  can  be  traced  back 
to  this  fourth  Congress,  although  it  did  not  become  one 
of  the  regular  standing  committees  until  later.26 

The  appointment  of  these  standing  committees,  partic- 
ularly of  that  of  ways  and  means,  was  in  a  way  a  mani-  \/ 
f  estation  of  the  Republican  theory  of  government.  From 
their  point  of  view,  the  members  of  the  House,  as  the 
direct  representatives  of  the  voters,  ought  to  be  the  main- 
spring of  the  whole  system.  Hitherto,  the  aristocratic  ^~ 
Federalists  had  sold  their  birthright  by  permitting  -the 
executive  to  take  a  more  active  part  in  the  government 
than  was  warranted  by  the  Constitution.  The  Republi- 
cans now  planned  to  bring  about  the  proper  balance 
between  the  different  branches,  by  broadening  at  once 
the  scope  of  the  operations  of  the  House,  and  restricting 
the  executive.  It  was  the  better  to  enable  the  House  to 
take  its  assigned  part  that  the  new  type  of  organization^/^ 

24  Adams,  Gallatin,  p.  157;  Gibbs,  Fed.  'Adm.,  I,  443. 

25  Annals,  4  Cong.  1,  152,  159;  4  Cong.  2,  1668. 

3  Cong.  2,  877;  4  Cong.  1,  127,  143,  159;  4  Cong.  2,  1598. 


158         DEVELOPMENT  OF  LAWMAKING 

was  worked  out.  Just  as  the  heads  of  departments  were 
looked  upon  as  agents  of  the  executive,  so  the  committees 
would  be  considered  as  the  agents  of  the  House.  Ames 
seems  to  have  given  expression  to  the  prevalent  opinion 
when  he  wrote  that  "committees  already  are  the  minis- 
ters.''27 

This  theory  of  House  supremacy  was  expressed  in 
another  way,  in  1796,  when  the  Republicans  were  trying 
to  abolish  the  mint.  After  some  discussion  there  seemed 
to  be  an  impression  that  a  bill  for  that  purpose  would  be 
defeated  in  the  Senate,  or  vetoed  by  the  president  in 
case  it  should  reach  him.  Giles  thereupon  asserted  that 
the  House  was  under  no  obligation  to  await  action  by  the 
other  factors  in  legislation.  The  representatives  of  the 
people  could  put  an  end  to  the  objectionable  institution 
themselves,  merely  by  withholding  appropriations.28 

When  the  question  of  appropriating  the  amount  called 
for  by  the  Jay  Treaty  was  laid  before  the  House,  the 
same  idea  was  brought  out  even  more  forcibly.  Accord- 
ing to  the  Republicans,  in  any  matter  pertaining  to 
finance  the  decision  of  the  House  was  final,  and  binding 
upon  all  other  departments.  Consequently  the  House 
had  a  perfect  right  to  refuse  to  make  the  appropriations 
if  it  saw  fit.  Thus  by  declining  to  act  it  might  prevent 
the  treaty  from  becoming  operative,  even  though  formal 
ratification  had  already  taken  place. 

To  the  frightened  Federalists  these  measures  of  their 
opponents  could  have  but  one  object:  the  overthrow  of 
all  the  other  departments  of  the  government.  Ames  in 
particular  felt  that  the  new  policy  was  full  of  danger. 
"Such  a  collection  of  Secretaries  of  the  Treasury,"  he 
wrote  in  1795, i  t  so  ready  on  questions  of  peace,  war,  and 
treaty,  feel  a  competence  to  every  thing,  and  discover  to 

27  Hamilton,  Works,  VI,  201. 

28  Annals,  4  Cong.  1,  259-260. 


REPUBLICANISM  IN  THE  HOUSE         159 

others  an  incompetence  for  any  thing,  except  what,  by 
the  Constitution,  they  should  be, — a  popular  check  on  the 
other  branches.  To  prevent  usurpation  or  encroachment 
on  the  rights  of  the  people,  they  are  inestimable ;  as  exec- 
utive agents,  which  our  disorganizers  contend  for,  they 
are  so  many  ministers  of  destruction. ' >29  Later  he  criti- 
cised the  House  because  it  affected  "to  engross  all  the 
active  and  efficient  powers  of  the  other  branches  to  them- 
selves, as  our  folks  do.  A  House  that  will  play  Presi- 
dent, as  we  did  last  spring,  Secretary  of  the  Treasury,  as 
we  ever  do,  &c.,  &c.,  will  play  mob  at  last.  Unless  it  is 
omnipotent,  the  members  will  not  believe  it  has  the  means 
of  self-defence. ' m  John  Adams  wrote  that :  '  '  There  are 
bold  and  daring  strides  making  to  demolish  the  Presi- 
dent, Senate,  and  all  but  the  House,  which,  as  it  seems  to 
me,  must  be  the  effect  of  the  measures  that  many  are 
urging."31  Likewise  Goodrich  expressed  the  belief  that 
the  Republicans  were  aiming  at  "a  total  overthrow  of 
ths  executive  systems.'"2 

This  Federalist  interpretation  is  not  wholly  accurate, 
for  it  fails  to  take  into  account  the  Republican  attitude 
toward  the  popular  branch  of  the  legislature.  Far  from 
trying  to  overthrow  the  Constitution,  they  were  trying 
to  reestablish  it.  To  be  sure,  political  intuition  would 
lead  them  to  emphasize  the  importance  of  the  only  branch 
of  the  government  under  their  control,  but  at  the  same 
time  there  is  no  valid  reason  for  seriously  questioning 
their  good  faith  so  early. 

29  Ames,  Works,  I,  161. 

so  ibid.,  212-213. 

si  Adams,  Letters  to  His  Wife,  II,  210.  The  same  idea,  expressed  in 
almost  the  same  words,  appeared  in  the  Columbian  Centinel  on  April  27, 
1796.  It  was  asserted  that  the  aim  of  the  majority  was  to  "destroy  the 
Executive,  to  usurp  and  engross  to  the  House  all  the  powers  of  the  Presi- 
dent and  Senate." 

32Gibbs,  Fed.  Adm.,  I,  337;  Ames,  Works,  I,  212;  cf.  Columbian  Cen- 
tinel, March  24,  1798. 


160         DEVELOPMENT  OF  LAWMAKING 

If  Federalist  accounts  are  to  be  trusted,  the  new  sys- 
tem inaugurated  by  the  Republicans  was  not  a  success. 
Committees  apparently  did  not  fill  the  places  left  vacant 
by  the  secretaries.  The  most  important  of  them  all,  the 
committee  of  ways  and  means,  incurred  the  unlimited 
contempt  of  the  Federalists.  This  new  head  of  the 
financial  system  had  not,  so  Ames  believed,  "  written  a 
page  these  two  years.  It  collects  the  scraps  and  fritters 
of  facts  at  the  Treasury,  draws  crude  hasty  results  tinc- 
tured with  localities.  These  are  not  supported  by  any 
formed  plan  of  cooperation  with  the  members,  and  the 
report  calls  forth  the  pride  of  all  the  motion-makers."38 
Moreover,  there  seemed  to  be  a  feeling  that  the  com- 
mittee chairmen  might  become  too  conspicuous.  They 
had  special  privileges  in  the  way  of  access  to  important 
documents,  and  some  Republicans  felt  that  they  were 
nearly  as  dangerous  to  liberty  as  the  secretaries  had 
been.  This  impression  was  responsible  for  much  of  the 
jealousy  and  rivalry  that  disturbed  the  party  leaders.34 

In  general  it  may  be  said  that  the  fourth  Congress  was 
characterized  by  that  hesitation  and  general  disinclina- 
tion to  assume  responsibility  for  which  the  Republicans 
were  becoming  notorious.  "  'Tis  true  the  disorganizers 
have  now  the  power  to  bring  forward  their  systems  of 
reform,"  wrote  Goodrich,  "and  that  they  dare  not — it 
would  create  a  responsibility  which  above  all  things  they 
fear ;  we  think  the  leaders  were  never  more  discontented 
with  their  lot  than  at  present."35 

They  might  have  been  pardoned  for  their  failure  to 
produce  a  general  system  of  legislation,  on  the  ground 
that  their  measures  would  never  receive  the  approval  of 

33  Hamilton,  Works,  VI,  202. 

34  Gibbs,  Fed.  Adm.,  I,  443. 

ss  Ibid.,  I,  298;  "  Hence,  eternal  spee.ches,  captious  criticisms,  and  new 
projects,  are  found  to  consume  all  the  time  which  ought  to  be  devoted  to 
business. "  Hid.,  p.  443. 


REPUBLICANISM  IN  THE  HOUSE         161 

a  hostile  president.  But  revenues  were  needed,  and  as 
they  had  arrogated  to  themselves  full  control  of  finance, 
they  might  be  criticised  for  lack  of  initiative  in  that  par- 
ticular field.  Instead  of  showing  any  inclination  to 
formulate  plans  they  simply  drifted  along  and  did 
nothing.86 

The  Eepublican  failure  in  the  House  was  due,  not  as 
at  first  to  the  lack  of  able  leadership,  because  Gallatin 
and  Giles  were  both  skilled  politicians,  but  to  the  absence  V^ 
of  harmony  and  cooperation  within  the  party  itself. 
The  leaders  did  not  have  the  rank  and  file  under  very 
strict  discipline,  and  the  members  themselves  displayed 
an  unseemly  inability  to  get  along  with  each  other.  Fed- 
eralist commentators  dwelt  upon  this  characteristic. 
Goodrich  wrote:  "I  believe  there  never  was  a  public 
body  deserved  less  the  public  confidence ;  who  were  more 
ignorant,  vain  and  incompetent,  than  the  majority  of 
the  present  House  of  Representatives.  The  whole  ses- 
sion has  been  a  disgraceful  squabble  for  power,  and  a 
display  of  unworthy  passions. "8T  "The  conduct  of  Con- 
gress is  a  political  phenomenon,"  wrote  Wolcott,  "over 
which  I  would  if  possible  draw  a  veil;  but  it  cannot  be 
concealed  that  there  has  been  no  system,  no  concert,  no 
pride,  and  no  industry.  "38  Ames  in  his  uncomplimen- 
tary manner  wrote  with  reference  to  the  same  subject: 
"Much  is  not  done  or  attempted,  and  I  perceive  (inter 
nos)  the  temper  and  objects  of  the  members  are  marked 
with  want  of  due  reflection  and  concert,  and  indicate  the 
proneness  to  anarchy,  and  the  self-sufficient  imbecility 
of  all  popular  bodies.  .  .  .  "39  Then  to  the  former 

se  Gibbs,  Fed.  Adm.,  I,  304,  321. 

«7  ma.,  I,  327;  cf.  Adams,  Letters  to  His  Wife,  II,  220:  "A  few 
outlandish  men  in  the  House  have  taken  the  lead,  and  Madison,  Giles  and 
Baldwin  are  humble  followers." 

ss  Gibbs,  Fed.  Adm.,  I,  443. 

39  Ames,  Works,  I,  212. 


162         DEVELOPMENT  OF  LAWMAKING 

Federalist  chieftain  he  wrote:  "But  the  apathy  and 
inefficiency  of  our  body  is  no  secret  to  you.  We  are  gen- 
erally in  a  flat  calm,  and  when  we  are  not  we  are  near 
sinking  in  a  tempest.  When  a  sovereign  convention 
engrosses  the  whole  power,  it  will  do  nothing  or  some 
violence  that  is  worse.  .  .  .  "40  To  another  Federalist 
he  sent  the  following:  "It  is  no  easy  matter  to  combine 
the  anarchical  opinions,  even  of  the  good  men,  in  a  popu- 
lar body.  We  are  a  mere  militia.  There  is  no  leader,  no 
point  de  ralliement.  The  motion-makers  start  up  with 
projects  of  ill-considered  taxes,  and  by  presenting  many 
and  improper  subjects,  the  alarm  to  popular  feelings  is 
rashly  augmented."41 

WTien  the  fifth  Congress  was  called  together  in  extra 
session  in  1797,  it  was  evident  that  the  Republicans  had 
practically  lost  their  hold  on  the  House.  Jefferson,  who 
knew  whereof  he  wrote,  reported  that:  "The  non- 
attendance  of  5.  or  6.  of  that  description,  has  left  the 
majority  very  equivocal  indeed.  A  few  individuals  of  no 
fixed  system  at  all,  governed  by  the  panic  or  prowess  of 
the  moment,  flap  as  the  breeze  blows  against  the  repub- 
lican or  the  aristocratic  bodies,  and  give  to  the  one  or  the 
other  a  preponderance  wholly  accidental.  "42 

From  then  on  until  the  election  of  1800  the  Federalists 
retained  control  of  the  government,  and  during  this 
interval,  the  period  of  the  Alien  and  Sedition  Acts  and 
the  Judiciary  Act,  the  Eepublicans  were  forced  back  into 
the  role  of  the  minority.43 

40  Hamilton,  Works,  VI,  202. 

41  Ames,  Works,  I,  214. 

42  Jefferson,  Works,  VII,  145. 

43  While   they  were  not  very   powerful,   they  were   sometimes   able   to 
embarrass  the  majority  party.     Jefferson  records  one  instance  where  the 
Eepublicans  were  able  to  carry  their  point  by  means  of  some  rather  sharp 
parliamentary  practice.     In   1798  some  peace  resolutions  were  introduced 
into  the  House.     He  wrote  that  they  were  offered  ' '  in  committee,  to  prevent 
their  being  suppressed  by  the  previous  question,  &  in  the  commee  on  the 
state  of  the  Union,  to  put  it   out  of  their  power,  by  the  rising  of   the 


EEPUBLICANISM  IN  THE  HOUSE         163 

Upon  their  return  to  power  the  Federalists  at  first 
made  no  attempt  to  restore  the  former  connection  be- 
tween the  House  and  the  Treasury  department,  or  to 
break  down  the  committee  system  which  the  Eepublicans 
had  established.  Even  the  committee  of  ways  and  means 
was  allowed  to  remain,  although  it  was  a  constant 
reminder  of  the  four-year  eclipse  of  the  Federalists. 
That  policy  of  non-interference  with  Republican  insti- 
tutions may  have  been  conditioned  by  Gallatin 's  influ- 
ence in  the  House,  which  was  still  strong  enough  to  draw 
a  complaint  from  Wolcott.44 

In  1800,  however,  by  a  vote  of  43  to  39,  the  House 
reestablished  the  Federalist  system.  On  May  9  a  bill 
was  passed,  authorizing  the  Secretary  of  the  Treasury  to 
lay  before  Congress  at  the  beginning  of  every  session  a 
report  on  the  subject  of  finance,  "together  with  such 
plans  for  improving  the  revenue  as  may  occur  to  him. ' >48 
In  good  Republican  fashion  Gallatin  and  Nicholas 
opposed  the  measure  on  constitutional  grounds.  Since 
all  money  bills  must  originate  in  the  House,  the  secretary 
had  no  right  even  to  "propose  anything  that  should 
originate  any  money  bill."  After  their  defeat  on  that 
measure,  the  Republicans  did  little  until  after  the  elec- 
tion of  Jefferson,  when  they  had  everything  their  own 
way. 

The  striking  feature  of  this  period  is  the  poor  showing 

commee  &  not  sitting  again,  to  get  rid  of  them/'  These  resolutions,  the 
"result  of  the  united  wisdom  and  deliberation  of  the  opposition  party," 
and  the  method  of  handling  them  show  that  the  Jeffersonians  were  by  no 
means  powerless  at  the  time.  Annals,  5  Cong.  2,  March  27,  1798;  Jefferson, 
Works,  VII,  224;  Columbian  Centinel,  April  4,  1798. 

4*  Wolcott  wrote  that  while  the  revenue  did  not  fall  off  as  he  had  feared 
it  would,  nevertheless  "the  management  of  the  Treasury  becomes  more 
and  more  difficult.  The  Legislature  will  not  pass  laws  in  gross.  Their 
appropriations  are  minute.  Gallatin,  to  whom  they  yield,  is  evidently 
intending  to  break  down  this  department,  by  charging  it  with  an  imprac- 
ticable detail."  Hamilton,  Works,  VI,  279. 

«  Annals,  6  Cong.  1,  709. 


x 


164         DEVELOPMENT  OF  LAWMAKING 

of  the  Eepublicans.  According  to  their  theories,  the 
House  of  Representatives  ought  to  have  been  the  most 
important  factor  in  the  government,  but  as  a  matter  of 
actual  record,  it  was  nothing  but  a  drag  on  the  adminis- 
tration. This  unfortunate  inability  to  act  might  at  first 
sight  seem  to  have  been  the  ordinary  deadlock  which 
comes  when  president  and  Congress  are  of  different  par- 
ties. A  closer  examination,  however,  shows  that  the  Ee- 
publicans gave  evidence  of  no  ability  even  in  the  field  of 
opposition.  They  were  so  situated  that  they  might  have 
embarrassed  the  administration  by  sending  up  bills  to 
be  signed,  as  Congress  is  wont  to  do  when  it  does  not 
agree  with  the  president,  but  they  were  in  no  condition 
to  do  that.  The  real  cause  of  their  trouble  was  lack  of 
unity  in  their  own  ranks.  The  Eepublicans  were  per- 
meated with  that  intense  individualism  or  spirit  of  sepa- 
ratism which  made  real  cooperation  impossible. 

Some  of  the  Eepublican  leaders  were  gradually  learn- 
ing that  their  theories  of  government,  good  as  they  were, 
counted  for  little  without  the  very  necessary  capacity 
for  constructive  action.  Those  traitors  to  democracy, 
the  Federalists,  had  found  the  secret  of  success  in  a 
well-organized  party.  Could  the  champions  of  popular 
rights  discover  methods  equally  effective,  and  at  the  same 
time  consistent  with  their  loudly  proclaimed  principles? 
Or  would  they  depart  from  the  paths  of  political  recti- 
tude, from  the  worship  of  the  spirit  of  democracy,  and 
follow  after  the  strange  gods  of  the  Federalists,  because 
those  gods  guaranteed  results? 


CHAPTER  X 
THE  JEFFERSONIAN  REGIME 

When  Jefferson  was  inaugurated  in  1801,  he  might 
well  have  observed  that  a  president's  worst  foes  are 
those  of  his  own  political  household.  Had  he  not  been 
an  incorrigible  optimist  he  would  have  been  discouraged 
at  the  very  start.  During  the  four  years  when  they  con- 
trolled Congress  his  followers  had  conducted  themselves 
in  such  a  manner  as  to  inspire  neither  pride  in  the  past 
nor  confidonce  in  the  future.  His  stiff-necked  associates 
had  not  been  able  even  to  make  good  political  capital  out 
of  their  control  of  the  House.  Whether  or  not  the  Repub- 
licans could  be  made  to  act  together  long  enough  to  put 
through  the  Jeffersonian  reforms  was  an  open  question. 

If  deliberate  expression  of  principle  counted  for  any- 
thing the  new  president  could  be  trusted  to  observe  the 
constitutional  barriers  which  separated  him  from  Con- 
gress. There  would  be  no  extra-legal  interference  of  the 
Hamiltonian  style  when  he  was  in  charge.  After  his 
election  to  the  vice-presidency  in  1797  he  explained  how 
executive  officials  ought  to  conduct  themselves.  "As  to 
duty,"  he  wrote,  "the  constitution  will  allow  me  only  as 
a  member  of  a  legislative  body;  and  it's  principle  is,  that 
of  a  separation  of  legislative,  executive  &  judiciary 
functions,  except  in  cases  specified.  If  this  principle  be 
not  expressed  in  direct  terms,  yet  it  is  clearly  the  spirit 
of  the  constitution,  &  it  ought  to  be  so  commented  & 
acted  on  by  every  friend  of  true  government."1 

Some  of  the  Federalists,  however,  were  not  sure  that 

i  Jefferson,  WorTcs,  VII,  108. 


166         DEVELOPMENT  OF  LAWMAKING 

Jefferson  would  obey  his  own  dictum.  John  Marshall, 
for  instance,  prophesied  that  there  would  be  a  very  inti- 
mate relationship  between  the  incoming  president  and 
his  party  following  in  Congress.  "Mr.  Jefferson, "  he 
wrote, i '  appears  to  me  to  be  a  man  who  will  embody  him- 
self with  the  House  of  Representatives.  By  weakening 
the  office  of  President,  he  will  increase  his  personal 
power.  He  will  diminish  his  responsibility,  sap  the 
fundamental  principles  of  the  government,  and  become 
the  leader  of  that  party  which  is  about  to  constitute  the 
majority  of  the  legislature."2 

Certainly  in  1797,  and  perhaps  in  1801,  Jefferson 
would  have  indignantly  repudiated  those  principles 
which,  as  Marshall  foretold,  later  became  the  very  foun- 
dation of  his  administration.  As  a  philosopher  and 
speculative  statesman,  before  experience  had  compelled 
him  to  discard  certain  cherished  ideas,  he  could  profess 
belief  in  the  constitutional  doctrine  of  legislative  inde- 
pendence. As  the  head  of  the  government,  and  the  leader 
of  a  badly  organized  group  of  politicians,  however,  he 
had  to  ignore  his  own  interpretation  of  the  constitution. 
*%  The  atmosphere  of  practical  politics  is  not  conducive  to 
the  long-continued  existence  of  pure  theory. 

It  is  not  necessary  to  go  far  in  order  to  discover  why 
Jefferson's  philosophy  of  government  could  not  be  trans- 
lated into  actual  practice.  In  the  first  place  the  funda- 
mental conceptions  of  his  party-following  made  harmony 
of  action  almost  impossible.  The  Eepublicans  were  the 
individualists  of  the  day,  men  who  looked  askance  at  any 
attempt  to  control  their  opinions  or  their  actions.  Had 
they  not  reviled  the  Federalists  for  their  base  subser- 
viency to  Alexander  Hamilton? 

This  suspicious  attitude  toward  able  leadership  was 
made  chronic  by  the  role  forced  upon  the  party  during 

2  Hamilton,  Works,  VI,  501-503. 


THE  JEFFERSONIAN  REGIME  167 

much  of  the  Federalist  period.  Originally  the  Republi- 
cans had  been  the  party  of  opposition  and  protest.  At 
that  time  habits  had  been  formed  which  could  not  be 
easily  shaken  off  when  the  party  was  placed  in  full  con- 
trol of  the  government.  Even  when  the  Republicans 
controlled  the  House  from  1793  to  1797,  their  organiza- 
tion had  been  far  from  effective,  and  they  really  accom- 
plished nothing  in  the  way  of  constructive  work.  Jeffer- 
son 's  inauguration  in  1801  did  not  bring  about  any 
miraculous  transformation  in  the  habits  of  his  party, 
nor  did  it  make  his  recalcitrant  followers  one  whit  more 
docile.  As  president  his  position  was  far  from  enviable. 
During  both  terms  relations  between  the  United  States 
and  the  belligerent  powers  of  Europe  were  always  in  a 
critical  condition.  Whatever  policies  he  adopted  were 
practically  sure  to  meet  with  the  unconditional  condem- 
nation of  the  Federalists,  to  whom  nothing  that  Jeffer- 
son ever  did  or  could  do  seemed  good.  To  make  matters 
worse,  he  was  constantly  worried  and  harassed  by  want 
of  harmony  and  by  factional  controversies  within  the 
ranks  of  the  Republicans  themselves.  Members  of  his 
party  found  it  very  difficult  to  agree  with  each  other  or 
with  their  chief. 

A  clear  appreciation  of  this  state  of  unstable  equilib- 
rium is  essential  to  any  understanding  of  the  history  of 
Congress,  and  of  its  relation  to  the  president  during  this 
period.  Under  normal  conditions  there  probably  would 
have  been  no  such  striking  discrepancy  between  Jeffer- 
son's constitutional  philosophy  and  his  conduct  as  presi-  < 
dent.  The  difficulties  in  which  he  found  himself  involved 
as  leader  of  his  party  furnish  the  key  to  the  Jeffersonian 
system. 

After  the  transfer  of  Gallatin  to  the  Treasury  depart- 
ment the  unenviable  task  of  guiding  the  administration 
party  in  the  House  fell  to  William  B.  Giles  of  Virginia. 


168         DEVELOPMENT  OF  LAWMAKING 

He  was  not  without  ability  as  a  leader,  and  while  he  was 
in  attendance  friction  within  the  ranks  was  visibly  re- 
duced. Unfortunately  for  the  Eepublican  organization 
in  Congress,  he  had  political  aspirations  in  his  own  state 
which  prevented  him  from  spending  all  his  time  in  Wash- 
ington. The  Washington  Federalist,  not  an  unprejudiced 
authority  to  be  sure,  but  trustworthy  when  supported  by 
evidence  from  other  sources,  had  much  to  say  concerning 
the  difficulties  encountered  by  the  new  rulers  in  handling 
their  own  party  associates.  "In  the  House  of  repre- 
sentatives M.  Giles  leads  the  ministerial  phalanx,  and  is 
the  only  member  of  it  whose  capacity  is  adequate  to 
the  conducting  measures  of  the  party.  Mr.  Eandolph 
attempted  to  lead,  but  failed;  .  .  .  Mr.  Giles  went  home 
some  time  ago,  and  in  his  absence  many  of  his  subalterns 
claimed  the  command;  the  consequence  was  they  split 
and  divided  among  themselves  daily.  On  the  return  of 
Mr.  Giles  a  grand  caucus  was  held  in  the  assembly  room 
here,  he  amalgamated  the  party;  they  agreed  there 
should  for  some  days  be  a  dumb  legislation;  that  they 
would  act  but  not  debate.  This  strong  proof  of  subor- 
dination was  not  refused  to  Mr.  Giles,  and  nothing  was 
said  for  two  days  by  the  ministerial  party."  The  real 
purpose  of  this  manoeuvre,  the  account  continued,  "was 
to  muzzle  some  of  their  party  who  had  become  trouble- 
some. ' " 

More  than  a  month  later  the  same  paper  contained 
the  following:  "It  is  believed  that  unless  the  speaker 
should  add  more  federalists  to  the  committees  appointed 
to  transact  the  business  of  Congress  that  they  will  not 
be  able  to  adjourn  or  complete  the  necessary  business 
between  this  and  the  last  of  October.  The  Chancellor  of 
the  Exchequer  (Mr.  R)  has  been  found  altogether  inade- 

s  Wash.  Fed.,  February  17,  1802.  Annals,  7  Cong.  1,  666;  Giles  is 
referred  to  here  as  "the  premier,  or  prime  minister  of  the  day  .  .  ." 


THE  JEFFEESONIAN  REGIME  169 

quate  to  the  discharge  of  his  financial  functions,  the  bill 
he  introduced  repealing  the  internal  taxes  was  found  to 
be  so  defective  as  to  require  an  amendment  of  twice  the 
length  of  the  original  bill.  The  chancellor's  knowledge 
of  parliamentary  proceedings  is  not  less  defective,  than 
his  skill  in  fiscal  concerns ;  .  .  .  Farmer  Giles  has  now 
arrived,  and  will  no  doubt  speedily  resume  the  com- 
mand. "4  In  a  letter  to  the  editor,  in  which  he  discussed 
the  Republican  difficulties,  one  Federalist  wrote  that 
1 '  The  ministerialists  here  are  in  a  most  distressed  situa- 
tion. Mr.  Giles  and  Mr.  Mason  have  both  gone  home, 
each  it  is  said  with  the  patriotic  intention  of  becoming 
governor  of  Virginia. — Unless  they  speedily  return,  it 
is  believed  that  the  President's  sect  in  the  House  of 
Representatives  will  be  obliged  to  relinquish  the  goodly 
work  of  reform  for  want  of  sufficient  acquaintance  with 
business  to  mature  their  plans  and  to  carry  them  into 
execution. '  '5 

Jefferson  himself  was  by  no  means  blind  to  the  short- 
comings of  the  legislature.  * '  Congress  is  not  yet  engaged 
in  business  of  any  note.  We  want  men  of  business  among 
them.  I  really  wish  you  were  here.  I  am  convinced  it  is 
in  the  power  of  any  man  who  understands  business,  and 
who  will  undertake  to  keep  a  file  of  the  business  before 
Congress  and  press  it  as  he  would  his  own  docket  in  a 
court,  to  shorten  the  sessions  a  month  one  year  with 
another  and  to  save  in  that  way  30,000  D.  a  year.  An  ill- 
judged  modesty  prevents  those  from  undertaking  it  who 
are  equal  to  it."6  An  interesting  letter  from  Randolph 
to  Gallatin  tells  the  same  story.  "By  the  way,  I  think 
you  wise  men  at  the  seat  of  government  have  much  to 
answer  for  in  respect  to  the  temper  prevailing  around 
you.  By  their  fruit  shall  ye  know  them.  Is  there  some- 

*  Wash.  Fed.,  March  25,  1802. 

e  Hid.,  March  27,  1802. 

«  Jefferson,  Writings,  VIII,  187. 


170         DEVELOPMENT  OF  LAWMAKING 

thing  more  of  system  yet  introduced  among  you?  or  are 
you  still  in  chaos,  without  form  and  void?"7 

Jefferson  frequently  reverted  to  the  subject.  With 
reference  to  the  Louisiana  purchase,  he  wrote  De  Witt 
Clinton  that  there  was  more  difference  of  opinion  in 
Congress  than  he  had  expected,  and  that  "our  leading 
friends  are  not  yet  sufficiently  aware  of  the  necessity  of 
accomodation  &  mutual  sacrifice  of  opinion  for  conduct- 
ing a  numerous  assembly,  where  the  opposition  too  is 
drilled  to  act  in  phalanx  on  every  question. '  '8  In  another 
letter  to  Eodney  he  expressed  regret  at  his  proposed 
retirement.  "I  had  looked  to  you  as  one  of  those  calcu- 
lated to  give  cohesion  to  our  rope  of  sand.  You  now  see 
the  composition  of  our  public  bodies,  and  how  essential 
system  and  plan  are  for  conducting  our  affairs  wisely 
with  so  bitter  a  party  in  opposition  to  us.  .  .  .  "9 

In  January,  1805,  referring  to  a  letter  from  Gallatin 
in  which  he  seems  to  have  complained  about  the  same 
difficulties,  Dallas  wrote,  "It  is  obvious  to  me  that  unless 
our  Administration  take  decisive  measures  to  discounte- 
nance the  factious  spirit  that  has  appeared,  unless  some 
principle  of  political  cohesion  can  be  introduced  into  our 
public  councils  as  well  as  at  our  elections,  and  unless  men 
of  character  and  talents  can  be  drawn  .  .  .  into  the  legis- 
lative bodies  of  our  government  .  .  .  the  empire  of 
Eepublicanism  will  moulder  into  anarchy,  and  the  labor 
and  hope  of  our  lives  will  terminate  in  disappointment 
and  wretchedness."10 

In  1806  one  of  the  most  famous  of  Jefferson's  floor 
leaders  broke  with  the  administration.  If  the  uncompli- 
mentary remarks  of  the  Washington  Federalist  were 
deserved  in  1802,  they  were  not  in  1805,  for  by  that  time 

7  Adams,  Gallatin,  p.  317. 

s  Jefferson,  Writings,  VIII,  282-283. 

»IWd.,  296. 

10  Adams,  Gallatin,  p.  327. 


THE  JEFFEESONIAN  REGIME  171 

Randolph  had  become  one  of  the  mainstays  of  the  party.11 
Yet  the  very  fact  that  he  was  so  powerful  was  an  element 
of  weakness  in  the  party  itself.  While  they  respected 
his  talents  as  a  general,  his  associates  hated  him  for  his 
overbearing  manner  and  his  caustic  tongue.  Yet  men 
followed  him  and  "  voted  as  was  right, "  as  Jefferson 
naively  put  it,  as  long  as  he  supported  the  administra- 
tion.12 But  Randolph  was  by  nature  a  man  of  the  oppo- 
sition, so  that  when  his  own  party  was  in  the  ascendant 
he  was  driven  to  take  the  other  side.  In  1820  Randolph 
himself  analyzed  his  own  eccentric  character  for  the 
benefit  of  his  colleagues  in  Congress,  and  the  abstract  of 
his  remarks  is  well  worth  quoting.  He  had  served  in 
Congress  almost  twenty  years,  he  said,  "nearly  four- 
teen of  which — just  double  the  time  .  .  .  that  Jacob 
served  for  Rachel,  had  been  spent  in  opposition  to  what 
is  called  government,"  for  he  "commenced  his  political 
apprenticeship  in  the  ranks  of  opposition;  .  .  .  and 
could  he  add  fourteen  more  to  them,  he  supposed  some 
political  Laban  would  double  his  servitude,  and  condemn 
him  to  toil  in  the  barren  field  of  opposition:  for  he 
despaired  of  seeing  any  man  elected  president  whose 
conduct  he  should  entirely  approve — he  should  never  be 
in  favor  at  court,  as  he  had,  somehow,  as  great  an  alac- 
rity at  getting  into  a  minority  as  honest  Jack  Falstaff 
had  at  sinking.  It  was,  perhaps,  the  place  he  was  best 
fitted  for  .  .  .  as  he  had  not  strength  to  encounter  the 
details  and  drudgery  of  business ;  habit  had  rendered  it 
familiar  to  him;  and  after  all,  it  was  not  without  its 
sweets  as  well  as  its  bitters  since  it  involved  the  glorious 
privilege  of  finding  fault — one  very  dear  to  the  depraved 

11  Adams,  Gallatin,  p.  363,  Gallatin  to  his  wife:   "Varnum  has,  much 
against   my   wishes,   removed   Randolph   from   the   Ways   and   Means    and 
appointed  Campbell,  of  Tennessee.    It  was  improper  as  related  to  the  public 
business,  and  will  give  me  additional  labor. ' ' 

12  Jefferson,  Writings,  VIII,  447-450. 


172         DEVELOPMENT  OF  LAWMAKING 

condition  of  poor  human  nature.  "13  It  seems  strange 
that  Jefferson  should  have  trusted  such  a  leader,  who 
could  be  depended  upon  for  nothing  except  perhaps  to 
fly  off  on  some  tangent  at  a  very  inopportune  time. 
There  is  evidence  that  as  early  as  1804  he  was  discon- 
tented with  his  position.  He  wrote  Gallatin,  partly  in 
jest  perhaps,  that  he  had  been  "pestered"  with  inquiries 
about  public  affairs.  He  found  it  impossible  to  answer 
them,  and  he  expressed  considerable  satisfaction  when 
he  learned  that  the  "Chancellor  of  the  Exchequer  and 
First  Lord  of  the  Treasury "  was  equally  unable.  Then 
the  letter  continued:  "In  short,  I  like  originality  too  well 
to  be  a  second-hand  politician  when  I  can  help  it.  It  is 
enough  to  live  upon  the  broken  victuals  and  be  tricked 
out  in  the  cast-off  finery  of  you  first-rate  statesmen  all 
the  winter.14 

The  immediate  occasion  of  his  fall  from  grace  was  a 
combination  of  the  Yazoo  land  business  and  Jefferson's 
attempt  to  force  through  an  appropriation  for  the  pur- 
chase of  Florida.15  In  the  Florida  affair  Randolph  as 
chairman  of  the  committee  of  ways  and  means  was 
expected  to  move  the  appropriation  of  the  necessary  two 
million  dollars  for  the  purchase.  He  refused  to  act,  and 
finally  the  government  measures  were  carried  in  spite 
of  the  refractory  chairman.  This  attempt  to  deprive 
him  of  his  position  as  House  leader  so  exasperated 
Eandolph  that,  greatly  to  the  delight  of  the  Federalists, 
he  turned  his  fiery  denunciations  against  his  former 
friends.16 

The  fact  that  his  defection  did  not  disrupt  the  party 
speaks  well  for  the  political  skill  of  the  president  and 

is  Annals,  16  Cong.  1,  1465. 
i*  Adams,  Gallatin,  p.  324. 

IB  For  a  full  account  of  these  matters  see  Adams,  Gallatin,  pp.  328-329, 
336-339. 

is  J.  Q.  Adams,  Memoirs,  I,  418. 


THE  JEFFEESONIAN  REGIME  173 

Ms  Secretary  of  the  Treasury.  Jefferson  took  pains  to 
assure  his  friends  that  Randolph's  action  really  left  the 
party  stronger  than  it  had  been  before.17 

A  year  after  this  episode  Jefferson  found  it  necessary 
to  procure  a  new  leader  for  the  House.  In  February, 
1807,  he  wrote  to  Wilson  Gary  Nicholas:  "Mr.  T.  M. 
Randolph  is,  I  believe,  determined  to  retire  from  Con- 
gress, and  it  is  strongly  his  wish,  &  that  of  all  here,  that 
you  should  take  his  place.  Never  did  the  calls  of  patriot- 
ism more  loudly  assail  you  than  at  this  moment.  After 
excepting  the  federalists,  who  will  be  27.,  and  the  little 
band  of  schismatics,  who  will  be  3.  or  4.  (all  tongue), 
the  residue  or  the  H  of  R  is  as  well  disposed  a  body  of 
men  as  I  ever  saw  collected.  But  there  is  no  one  whose 
talents  &  standing,  taken  together,  have  weight  enough 
to  give  him  the  lead.  The  consequence  is,  that  there  is 
no  one  who  will  undertake  to  do  the  public  business,  and 
it  remains  undone.  Were  you  here,  the  whole  would 
rally  round  you  in  an  instant,  and  willingly  co-operate  in 
whatever  is  for  the  public  good.  Nor  would  it  require 
you  to  undertake  the  drudgery  in  the  House.  There  are 
enough,  able  &  willing  to  do  that.  A  rallying  point  is 
all  that  is  wanting.  Let  me  beseech  you  then  to  offer 
yourself.  You  never  will  have  it  so  much  in  your  power 
again  to  render  such  eminent  service.  "18  This  letter 
hardly  harmonizes  with  the  president's  earlier  views 
regarding  the  relation  between  executive  and  legislature. 

The  material  quoted  above  explains  why  Jefferson,  the 
great  champion  of  democracy,  has  the  reputation  of  being 
an  autocrat  in  his  dealings  with  Congress.  All  his  work 
was  done  amidst  forces  of  disruption  that  constantly 
threatened  his  plans  with  failure.  Under  such  conditions 
he  was  confronted  with  the  bitter  choice  of  permitting 

IT  Jefferson,  Writings,  VIII,  428,  434,  441,  447-450. 
is  IUd.,  IX,  32. 


174         DEVELOPMENT  OF  LAWMAKING 

internal  weaknesses  to  wreck  his  party,  or  of  throwing 
away  his  theories  and  taking  full  charge  of  the  manage- 
ment of  the  legislature.  No  good  politician  could  con- 
sider the  first  alternative,  and  Jefferson  was  nothing  if 
not  a  good  politician.  Naturally  he  chose  the  second. 
He  and  Gallatin  had  guided  the  party  before  1801,  and 
Hamilton's  success  showed  conclusively  that  Congress 
could  if  necessary  be  led  from  outside. 

And  yet,  just  as  surely  as  executive  officials  undertook 
to  manage  legislation,  there  would  be  immediate  and 
forceful  protests.  The  dilemma  was  clearly  perceived 
by  Jefferson.  "Our  situation  is  difficult ;"  he  wrote  to 
William  Duane  in  1806,  "&  whatever  we  do  is  liable  to 
the  criticisms  of  those  who  wish  to  represent  it  awry.  If 
we  recommend  measures  in  a  public  message,  it  may  be 
said  that  members  are  not  sent  here  to  obey  the  mandates 
of  the  President,  or  to  register  the  edicts  of  a  sovereign. 
If  we  express  opinions  in  conversation,  we  have  then  our 
Charles  Jenkinsons,  &  back-door  counsellors.  If  we  say 
nothing,  'we  have  no  opinions,  no  plans,  no  cabinet.'  In 
truth  it  is  the  fable  of  the  old  man,  his  son  &  ass,  over 
again."19 

The  president  had  learned,  if  his  followers  had  not, 
that  the  Republicans  had  made  a  mistake  in  criticising 
so  vigorously  the  Federalist  organization  constructed  by 
Hamilton.  It  took  very  little  experience  as  head  of  the 
administration  to  convince  the  more  clear-headed  Eepub- 
licans  that  their  opponents  had  hit  upon  the  only  prac- 
tical plan  of  actual  government.  The  constitutional 
separation  of  executive  and  legislature  would  not  work 
in  everyday  practice,  and  the  very  logic  of  facts  drove 
the  Jeffersonians  into  the  paths  blazed  by  their  "aristo- 
cratic" opponents. 

The  comprehensive  scope  of  Jefferson's  activity  as 

is  Jefferson,  Writings,  VIII,  431-433. 


THE  JEFFERSONIAN  REGIME  175 

president  was  well  described  by  the  two  senators  from 
Massachusetts.  John  Quincy  Adams  wrote  concerning 
the  proposed  Florida  purchase :  * l  The  measure  has  been 
very  reluctantly  adopted  by  the  President's  friends,  on 
his  private  wishes  signified  to  them,  in  strong  contradic-  ^ 
tion  to  the  tenor  of  all  his  public  messages.  His  whole 
system  of  administration  seems  founded  upon  this  prin- 
ciple of  carrying  through  the  legislature  measures  by  his 
personal  or  official  influence.  There  is  a  certain  pro- 
portion of  the  members  in  both  Houses  who  on  every 
occasion  of  emergency  have  no  other  enquiry  but  what  is 
the  President's  wish.  These,  of  course,  always  vote 
accordingly.  Another  part  adhere  to  him  in  their  votes, 
though  strongly  disapproving  the  measures  for  which 
they  vote,  A  third  float  in  uncertainty ;  now  supporting 
one  side  of  a  question  and  now  supporting  the  other,  and 
eventually  slinking  away  from  the  record  of  their  votes. 
A  fourth  have  the  spirit  even  to  vote  against  the  will  of 
their  leader.  .  .  .  This  is,  however,  one  of  those  tempo- 
rizing experients  the  success  of  which  is  very  doubtful. 
If  a  really  trying  time  should  ever  befall  this  adminis- 
tration, it  would  very  soon  be  deserted  by  all  its  troops, 
and  by  most  of  its  principal  agents.  Even  now  they 
totter  at  every  blast.  "20  Senator  Pickering  wrote  in  the 
same  way  at  about  the  same  time.  He  reported  that 
Jefferson  tried  "to  screen  himself  from  all  responsibil- 
ity, by  calling  upon  Congress  for  advice  and  direction. 
.  .  .  Yet  with  all  this  affected  modesty  and  deference,  he 
secretly  dictates  every  measure  which  is  seriously  pro- 
posed and  supported;  and  there  are  creatures  mean 
enough  to  suggest,  from  time  to  time,  that  such  is  the 
President's  wish!"21 

These  statements,  made  by  men  whose  testimony  is 

20  J.  Q.  Adams,  Memoirs,  I,  403,  February  7,  1806. 

21  Pickering  MSS.,  XXXVIII,  102£c,  February  2,  1806. 


176         DEVELOPMENT  OF  LAWMAKING 

to  be  trusted,  because  it  is  supported  by  enough  corrob- 
orative evidence,  hardly  harmonize  with  Jefferson's 
own  theory  of  government,  but  they  do  show  that  the 
1 1  Sage  of  Monticello '  *  was  an  eminently  practical  man. 

It  is  evident  that  both  in  methods  and  in  effectiveness 
the  Eepublican  legislative  machine  differed  little  from 
that  evolved  by  the  severely  criticised  Federalists.  The 
president  and  his  Secretary  of  the  Treasury  were  re- 
sponsible for  the  main  outlines,  and  in  some  cases  for 
/  the  details  as  well,  of  party  measures.  Policies  were 
evolved,  programs  laid  before  Congress,  and  bills  passed, 
all  under  the  watchful  eye  of  the  chief  executive.  Jeffer- 
son was  so  successful  that  he  was  called  a  tyrant,  but 
his  methods  were  more  like  those  of  the  Tudor  kings 
than  of  the  Italian  despots.  Everything  that  he  did  had 
to  be  done  through  Congress.  Congress  to  be  sure  was 
usually  ready  to  follow  Jefferson's  lead,  but  the  com- 
pliance of  that  body  was  due  to  nothing  else  than  the 
constant  and  never  ending  vigilance  of  Jefferson  and 
Gallatin. 

In  one  important  particular  Jefferson  improved  upon 
Federalist  legislative  methods.  Hamilton  had  his  fol- 
lowers in  Congress,  and  there  was  usually  some  one 
leader  of  prominence  in  charge  of  the  party  forces,  but 
this  floor  leader  was  not  looked  upon  as  the  personal 
representative  of  the  president  himself.  He  was  rather 
an  assistant  to  the  Speaker.  From  1801  to  1808  the  floor 
*  leader  was  distinctly  the  lieutenant  of  the  executive. 
William  B.  Giles,  who  was  actually  referred  to  as  "the 
premier,  or  prime  minister,"  Caesar  A.  Eodney,  John 
Eandolph  of  Eoanoke,  and  Wilson  Cary  Nicholas  all  held 
that  honorable  position  at  one  time  or  another.  It  was 
their  duty  to  look  after  party  interests  in  the  House,  and 
in  particular  to  carry  out  the  commands  of  the  president. 
The  status  of  these  men  was  different  from  that  of  the 


THE  JEFFEESONIAN  REGIME  177 

floor  leader  of  to-day,  who  is  given  his  position  because 
of  long  service  in  the  House.  They  were  presidential 
agents,  appointed  by  the  executive,  and  dismissed  at  his 
pleasure.  The  letters  to  Eodney  and  Nicholas,  quoted 
above,  show  that  in  at  least  two  cases  Jefferson  actually 
urged  men  to  run  for  Congress  in  order  to  act  as  his  lieu- 
tenants. When  Randolph  refused  to  comply  with  the 
president's  wishes  in  the  Florida  affair,  he  was  reduced 
to  the  ranks  and  Nicholson  took  charge,  until  Jefferson 
could  persuade  Nicholas  to  enter  Congress. 

In  view  of  these  facts,  it  is  not  surprising  that  Macon 
and  Varnum,  the  two  Speakers  during  this  period,  should 
have  left  such  indistinct  traces  in  the  records  of  Con- 
gress. To  be  sure  they  were  chosen  by  their  party  asso- 
ciates in  the  House,  but  they  were  never  given  authority 
over  them.  Leadership  was  neither  the  prerogative  of 
seniority  nor  a  privilege  conferred  by  the  House ;  it  was 
distinctly  the  gift  of  the  president.  It  might  be  added 
that  in  just  what  section  of  the  Constitution  he  found 
his  sanction  for  such  a  practice  the  prince  of  strict  con- 
structionists  never  told. 

Jefferson  made  it  evident  that  his  interest  in  Con- 
gress did  not  cease  with  the  appointment  of  a  floor  leader.  .^ 
On  the  contrary  conferences  with  his  agents  were  fully  as 
important  as  cabinet  meetings  themselves.  Personal 
work  with  the  leaders  was  in  some  cases  the  only  way  of 
securing  favorable  action  on  his  policies.  In  1804,  when 
Congress  was  at  work  on  the  Louisiana  government  bill, 
the  leaders  planned  to  put  the  system  into  operation  at 
the  close  of  the  session.  Jefferson  wanted  to  make  Mon- 
roe governor  of  the  territory,  but  the  latter  could  not 
return  from  France  in  time  to  begin  his  work  so  soon. 
Jefferson  therefore  did  not  want  the  bill  to  go  into  imme- 
diate effect,  and  in  "private  conversations  demonstrated 
to  individuals  that  that  is  impossible ;  that  the  necessary 


178         DEVELOPMENT  OF  LAWMAKING 

officers  cannot  be  mustered  there  under  6  months."22 
That  was  a  case  where  he  could  not  safely  trust  to  his 
floor  leader.  Later  Jefferson  referred  to  his  frequent 
communications  with  Randolph  and  Nicholson  as  matters 
of  course.28 

If  the  Washington  Federalist  is  to  be  trusted,  meas- 
ures that  did  not  receive  the  sanction  of  the  president 
met  with  vigorous  opposition  in  Congress.24  Jefferson's 
influence  it  seems  worked  both  ways. 

The  passing  of  the  Embargo  is  usually  taken  as  the 
crowning  instance  of  Jefferson's  power  in  Congress, 
although  very  little  has  come  to  light  in  connection  with 
it  which  would  illustrate  his  methods  of  dealing  with 
that  body.  Pickering  to  be  sure  bitterly  complained  that 
Jefferson  "is  the  government/'  but  that  was  his  usual 
complaint  anyway.  When  the  Embargo  message  was 
laid  before  the  Senate,  Pickering  wrote  that  "it  was 
manifest  that  the  minds  of  his  special  agents  and  of  a 
decided  majority  were  previously  prepared."25 

Perhaps  his  proposed  plan  for  the  purchase  of  Florida 
affords  the  best  example  of  his  success  in  driving  through 
a  favorite  policy  in  spite  of  the  determined  hostility  of 
some  of  his  own  followers.  After  making  up  his  mind 

22  Jefferson,  Writings,  VIII,  288. 

23  Ibid.,  468-472.    Kef  erring  to  Eandolph  's  philippics  against  the  admin- 
istration, Jefferson  wrote:  "He  speaks  of  secret  communications  between 
the   executive   and  members,    of   backstairs'    influence   &c,   But   he   never 
spoke  of  this  while  he  and  Mr.  Nicholson  enjoyed  it  almost  solely.     But 
when  he  differed  from  the  executive  in  a  leading  measure,  &  the  executive, 
not  submitting  to  him,  expressed  it's  sentiments  to  others,    (to  wit,  the 
purchase  of  Florida)  which  he  acknoleges  they  expressed  to  him,  then  he 
roars  out  upon  backstairs  influence."     Of  all  men  in  the  Eepublican  party 
Jefferson  should  have  been  the  last  to  attempt  to   remove   the  mote  of 
inconsistency  from  Eandolph 's  eye. 

2*  Wash.  Fed.,  February  17,  1804.  During  a  debate  on  a  proposal  to 
authorize  the  building  of  two  small  vessels  Ar  the  navy,  Nicholson  came 
out  in  favor  of  the  measure,  but  John  Eandolph  argued  that  "Congress 
ought  not  to  adopt  the  measure,  because  no  intimation  of  its  propriety  had 
been  given  by  the  President." 

25  Pickering  MSS.  XXXVIII,  121-124. 


THE  JEFFERSONIAN  REGIME  179 

that  troublesome  questions  in  the  southeast  might  be 
solved  by  buying  the  territory,  he  began  his  campaign. 
In  the  first  place,  he  frightened  the  country  by  sending  to 
Congress  a  veritable  war  message,  stating  that  American 
citizens  had  been  subjected  to  injury  in  the  Spanish  pos- 
sessions. ' '  Some  of  these  injuries, ' '  so  the  message  ran, 
"may  perhaps  admit  a  peaceable  remedy.  Where  that 
is  competent  it  is  always  the  most  desirable.  But  some 
of  them  are  of  a  nature  to  be  met  by  force  only,  and  all 
of  them  may  lead  to  it.  I  can  not,  therefore,  but  recom- 
mend such  preparations  as  circumstances  call  for. ' m  In 
a  private  message,  however,  he  recommended  a  settlement 
similar  to  the  Louisiana  purchase.  "Formal  war  is  not 
necessary — it  is  not  probable  that  it  will  follow;"  so  ran 
the  second  message,  "but  the  protection  of  our  citizens, 
the  spirit  and  honor  of  our  country  require  that  force 
should  be  interposed  to  a  certain  degree.  .  .  .  But  the 
course  to  be  pursued  will  require  the  command  of  means 
which  it  belongs  to  Congress  exclusively  to  yield  or  to 
deny."27  It  was  planned  to  have  Congress  adopt  public 
resolutions,  in  harmony  with  the  spirit  of  the  first  mes- 
sage, which  were  drafted  by  Jefferson  himself,28  after 
which  the  necessary  appropriation  would  be  made.  Ran- 
dolph, the  chairman  of  the  committee  of  ways  and  means, 
refused  to  act,  but  under  the  leadership  of  Nicholson 
Congress  finally  acceded  to  Jefferson's  wishes.29 

In  this  connection  Pickering  asserted  that  Jefferson 
originally  planned  to  purchase  the  territory  first,  and 
then  trust  to  Congress  to  sanction  the  proceedings.  Al- 
though the  project  was  discussed  at  a  cabinet  meeting, 

26  Richardson,  Messages,  I,  384-385. 

27  Hid.,  390. 

28  Adams,  Gallatin,  p.  337;  Gallatin,  Writings,  I,  277,  281. 

2»  J.  Q.  Adams,  Memoirs,  I,  403,  "The  measure  has  been  very  reluc- 
tantly adopted  by  the  President's  friends,  on  his  private  wishes  signified 
to  them,  in  strong  contradiction  to  the  tenor  of  all  his  public  messages." 


180         DEVELOPMENT  OF  LAWMAKING 

the  Republican  leaders  did  not  have  the  courage  to  fol- 
low the  initial  impulse.30 

In  some  cases  Jefferson  took  charge  of  drafting  bills, 
which  were  subsequently  laid  before  Congress.  In  1804 
the  cabinet  held  a  meeting  to  discuss  what  action  should 
be  taken  with  reference  to  the  insults  to  which  American 
vessels  were  subjected  by  foreign  men-of-war.  The 
conclusions  of  the  cabinet  were  put  in  the  form  of  a  bill, 
which  the  president  planned  to  give  to  Eandolph.  Con- 
gress, however,  had  already  referred  the  subject  to  a  se- 
lect committee,  so  the  bill  was  sent  directly  to  a  member 
of  that  committee.31  Again  in  December,  1805,  Jefferson 
drafted  two  bills,  one  for  establishing  a  naval  militia,  and 
the  other  for  classifying  the  militia.32  The  classification 
bill  was  adversely  reported  on  by  the  committee,  but 
after  conversing  with  individual  members  Jefferson  felt 
that  the  bill  would  pass.  ' 1 1  had  rather  have  that  classi- 
fication established,"  he  wrote,  "than  any  number  of 
regulars  which  could  be  voted  at  this  time."33 

Mr.  Henry  Adams  refers  to  the  government  during 
the  eight  years  of  the  Jeffersonian  regime  as  a  triumvir- 
ate, with  the  president  and  the  Secretaries  of  State  and 
of  the  Treasury  as  the  real  rulers.34  This  was  true  as  far 
as  the  general  policy  of  the  government  was  concerned, 
but  in  the  actual  processes  of  legislation  Madison  had  no 
concern.  He  had  never  shown  great  skill  as  a  parlia- 
mentarian, either  in  the  House  of  Burgesses  or  in  the 
House  of  Eepresentatives,  and  his  letters  are  almost  de- 

30  Pickering  MSS.  XIV,  155^-f,  "  there  was  at  least  a  consultation  (if 
not  a  direct  proposition  from  the  President)   to  take  the  two  millions  to 
remit  to  Paris,  and  depend  on  the  willingness  of  Congress,  when  it  should 
meet,  to  sanction  the  act:  but  they  were  not  quite  hardy  enough  to  take 
this  unwarrantable  step. ' ' 

31  Jefferson,  Works,  VIII,  333-336. 
*2  Ibid.,  403-412. 

33  Hid.,  415-416. 

34  Adams,  Gallatin,  p.  269. 


THE  JEFFERSONIAN  REGIME  181 

void  of  references  to  procedure,  either  formal  or  infor- 
mal. He  was  the  statesman  of  the  triumvirate,  not  its 
Congressional  director. 

Gallatin  on  the  other  hand  associated  himself  with 
Jefferson  in  the  actual  management  of  important  legis- 
lative proceedings,  and  his  previous  experience  in  the 
House  enabled  him  to  render  valuable  service.  Just  as 
Francis '  hotel  had  been  the  rendezvous  of  the  Republi- 
can leaders  during  Adams'  administration,35  so  Galla- 
tin 's  house  became  the  recognized  headquarters  of  the 
party  chieftains  in  later  years.  Macon,  the  Speaker, 
Randolph,  the  floor  leader,  Nicholson,  Nicholas,  Baldwin, 
and  others  almost  equally  prominent  in  the  councils  of 
the  party  were  constantly  there.  Adams  states  that 
hardly  a  trace  of  these  conversations  was  recorded,  so 
there  is  no  evidence  to  throw  light  on  these  mo'sjb  impor- 
tant party  gatherings.36  Gallatin  himself  wrote  that  he 
had  been  very  free  in  his  dealings  with  prominent  mem- 
bers of  the  legislature,  and  it  is  evident  that  he  kept  a 
close  watch  over  all  proceedings  in  Congress.37  If  there 
was  no  one  in  that  body  ready  to  look  after  party  inter- 
ests, Gallatin  was  able  to  interfere  personally,  and  in  at 
least  two  instances  he  prevented  the  passing  of  unde- 
sirable bills.  He  wrote  Jefferson  that  the  chairman  of  a 
certain  committee  had  reported  two  bills,  one  to  alter 
the  form  of  government  of  Michigan,  "on  principles  so 
opposed  to  those  of  our  political  institutions  that  I  am  at 

35  "South  Carolina  Federalists, "  Am.  Hist.  Bev.,  XIV,  787,  "Jefferson 
lodges  at  Francis's  hotel  with  a  knot  of  Jacobins  .  .  ." 

so  Adams,  Gallatin,  p.  302. 

37jfcid.,  p.  346,  October  13,  1806,  Gallatin  to  Jefferson:  "If  .  .  .  there 
be  any  who  believe  that  in  my  long  and  confidential  intercourse  with  Eepub- 
lican  members  of  Congress,  that  particularly  in  my  free  communication  of 
facts  and  opinions  to  Mr.  Eandolph,  I  have  gone  beyond  what  prudence 
might  have  suggested,  the  occasion  necessarily  required,  or  my  official  situa- 
tion strictly  permitted,"  they  would  naturally  criticise  freely. 


182         DEVELOPMENT  OF  LAWMAKING 

a  loss  to  guess  how  it  could  pass  the  House  without  ani- 
madversion. "  The  other  proposed  to  give  the  governor 
and  judges  authority  to  decide  all  land  claims  in  the  terri- 
tory. l 'Both  passed  the  House ;  Nicholson  had  resigned ; 
Randolph  attending  to  other  objects;  no  man  yet  con- 
sidering himself  as  obliged  to  watch  over  every  proceed- 
ing; in  fact,  nobody  had  attended  to  the  business.  I 
found  it  necessary  to  interfere  by  speaking  to  members 
of  the  Senate,  and  succeeded  in  having  the  government 
bill  postponed  sine  die,  and  the  general  principles  of 
the  land  bill  rejected.  "38  As  was  the  case  with  Hamilton, 
Gallatin  must  have  found  that  his  official  duties  were 
not  the  only  matters  to  which  he  had  to  give  his  atten- 
tion. The  "course  of  legislative  manoeuvres "  was  like- 
wise a  matter  of  concern  to  Jefferson's  Secretary  of  the 
Treasury. 

As  a  matter  of  fact,  an  outline  of  Gallatin 's  work  as 
Secretary  of  the  Treasury  and  first  assistant  in  Congres- 
sional business  shows  that  Hamiltonian  precedents  were 
generally  followed.  In  the  first  place  the  hitherto  uncon- 
stitutional practice  of  reference  was  revived  by  the  Re- 
publicans. On  February  21, 1803,  a  resolution  was  intro- 
duced by  a  Republican  member,  to  the  effect  that  the 
Secretary  of  the  Treasury  be  directed  to  prepare  and  sub- 
mit to  Congress  early  in  the  next  session  a  plan  for  lay- 
ing "new  and  more  specific  duties"  on  imports,  so  that 
' '  the  same  shall,  as  near  as  may  be,  neither  increase  nor 
diminish  the  present  revenue  arising  to  the  United  States 
from  imports. ' >39  On  March  3,  the  secretary  was  directed 
to  prepare  and  lay  before  Congress  at  the  next  session 
a  digest  of  laws  relating  to  duties  on  imports  and  ton- 
nage, together  with  recommendations  regarding  such 

ss  Gallatin,  Writings,  I,  322,  November  25,  1806.  It  was  in  the  follow- 
ing February  that  Jefferson  wrote  to  Nicholas,  urging  him  to  take  command 
of  Congress. 

39  Annals,  7  Cong.  2,  567-568. 


THE  JEFFERSONIAN  REGIME  183 

changes  as  might  be  necessary.40  The  mere  fact  that 
their  first  accession  to  power  had  been  used  primarily 
for  the  purpose  of  breaking  up  a  connection  of  almost 
identically  the  same  kind  did  not  weigh  heavily  on  the 
Republican  conscience.  Hamilton  was  secretary  in  1794, 
while  Gallatin  held  the  position  in  1803.  Evidently  leg- 
islative methods  were  neither  corrupt  nor  unconstitu- 
tional in  themselves.  It  was  only  their  employment  by 
the  "aristocrats"  that  made  them  dangerous.  More- 
over the  specially  appointed  guardians  of  popular  rights 
are  of  course  freed  from  the  rules  that  bind  ordinary 
men.  What  matter  if  the  Republicans  did  take  over  the 
whole  legislative  system  of  the  Federalists,  which  they 
had  formerly  condemned  and  annihilated?  The  chosen 
representatives  of  the  sovereign  people  could  do  no 
wrong. 

Moreover  the  secretary  attended  committee  meetings, 
after  the  manner  of  his  predecessor.41  Then  he  certainly 
complained,  and  evidently  protested  vigorously  when 
Randolph  was  removed  from  the  chairmanship  of  the 
committee  of  ways  and  means.42  Besides  attending  com- 
mittee meetings  and  attempting  to  interfere  in  the  choice 
of  chairmen,  Gallatin  drafted  at  least  one  report  for  the 
committee  of  foreign  relations,  which  Campbell,  the 
chairman  of  the  committee,  presented  to  the  House.43 
There  was  no  Maclay  to  record  in  detail  the  practices  of 
the  Republican  secretary,  but  what  evidence  there  is 
indicates  that  in  managing  the  legislature  he  was  just 
as  active  and  as  successful  as  Hamilton  had  been  before 
him. 

During  this  period  of  Republican  supremacy  the  most 

40  Annals,  7  Cong.  2,  644. 

41  J.  Q.  Adams,  Memoirs,  I,  447. 

42  Adams,  Gallatin,  p.  363. 

43/fctd.,  p.  378;  Gallatin,  Writings,  I,  435-446. 


184         DEVELOPMENT  OF  LAWMAKING 

noteworthy  institution  in  Congress  was  not  the  standing 
committee,  although  its  importance  was  steadily  grow- 
ing, nor  yet  the  speakership,  but  the  extra-constitutional 
party  organization  called  the  caucus.  Through  the  cau- 
cus the  jarring,  discordant  elements  of  the  party  were 
reconciled  and  made  to  work  together,  so  that  concerted 
policies  and  harmonious  action  were  no  longer  the  exclu- 
sive possessions  of  the  Federalists.  Inasmuch  as  consti- 
tutional restrictions  did  not  operate  in  the  realm  of  party 
machinery,  president,  cabinet,  and  legislature  could  all 
come  together  on  equal  terms  in  the  stronghold  of  a 
secret  meeting.  The  artificial  barriers  of  a  written  con- 
stitution prevented  a  perfectly  frank  and  open  connec- 
tion between  the  branches  of  government,  and  forced 
into  existence  instead  an  illegitimate  union  with  all  its 
attendant  evils.  To  the  politician  of  course  the  scheme 
seemed  good,  because  it  made  possible  the  necessary  co- 
operation, while  at  the  same  time  it  effectually  concealed 
individual  responsibility. 

The  device  itself,  well  known  in  the  colonies,  had  been 
brought  into  Congress,  as  early  as  1790,  during  the 
period  of  Hamilton's  supremacy.  By  1797  the  Senate 
was  so  familiar  with  it  that  committee  membership  was 
determined  in  secret  party  session.44  Jefferson  is 
authority  for  the  statement  that  "during  the  XYZ  Con- 
gress, the  Federal  members  held  the  largest  caucus  they 
ever  had,  .  .  .  and  the  question  was  proposed  and  de- 
bated, whether  they  should  declare  war  against  France, 
and  determined  in  the  negative.'?  He  also  reported  that 

44  "South  Carolina  Federalists, "  Am.  Hist.  Rev.,  XIV,  789,  May  29, 
1797.  The  Senate  distributed  the  parts  of  the  President's  speech  to 
several  committees;  "by  a  previous  arrangement,  they  have  left  out  of 
the  commies,  every  one  of  the  minority  to  shew  them  that  they  have  no 
confidence  in  them  and  are  afraid  to  trust  them  at  this  crisis:  there  is  not 
a  man  of  the  minority  on  any  one  committee." 


THE  JEFFERSONIAN  K3GIME  185 

in  that  caucus  only  five  more  votes  were  needed  to  bring 
about  a  declaration  of  war.45 

Perhaps  the  most  noteworthy  of  all  Federalist  cau- 
cuses were  those  held  in  1801,  during  the  exciting  contest 
for  the  presidency.  Bayard,  who  assumed  the  lead  after 
the  deadlock  became  serious,  decided  to  vote  for  Jeffer- 
son instead  of  Burr.  He  called  a  caucus,  and  informed 
his  colleagues  of  his  determination.  After  the  first  out- 
burst of  indignation  they  seemed  inclined  to  "acquiese," 
and  another  caucus  was  arranged  for,  "merely  to  agree 
upon  the  mode  of  surrendering."46  After  the  election 
was  over  Bayard  wrote  a  vivid  account  of  the  whole  pro- 
ceeding to  Hamilton.  "In  the  origin  of  the  business  I 
had  contrived  to  lay  hold  of  all  the  doubtful  votes  in  the 
House,  which  enabled  me,  according  to  views  which  pre- 
sented themselves,  to  protract  or  terminate  the  contro- 
versy. ' ' 

"This  arrangement  was  easily  made.  .  .  .  When  the 
experiment  was  fully  made,  and  acknowledged  upon  all 
hands  to  have  completely  ascertained  that  Burr  was 
resolved  not  to  commit  himself,47  and  that  nothing  re- 
mained but  to  appoint  a  President  by  law,  or  leave  the 
government  without  one,  I  came  out  with  the  most  ex- 
plicit and  determined  declaration  of  voting  for  Jeffer- 
son. You  cannot  well  imagine  the  clamor  and  vehement 
invectives  to  which  I  was  subjected  for  some  days.  We 
had  several  caucuses.  All  acknowledged  that  nothing 
but  desperate  measures  remained,  which  several  were 
disposed  to  adopt,  and  but  few  were  willing  openly  to 
disapprove.  We  broke  up  each  time  in  confusion  and 

45  Jefferson,  Anas,  January  10,  13,  1800.  These  reports  came  to  Jeffer- 
son in  rather  roundabout  fashion. 

«  Bayard  Papers,  A.  H.  A.  Eeport,  1913,  II,  127. 

47  In  a  letter  written  during  the  controversy  itself,  Bayard  wrote  that 
Burr  "was  determined  to  come  in  as  a  Democrat.  .  .  ."  Bayard  Papers, 
126. 


186         DEVELOPMENT  OF  LAWMAETING 

discord,  and  the  manner  of  the  last  ballot  was  arranged 
but  a  few  minutes  before  the  ballot  was  given.  Our 
former  harmony,  however,  has  since  been  restored."48 
Maclay  had  been  inclined  to  speak  critically  of  this 
device  of  the  Federalists,  but  once  in  power  the  Bepub- 
licans  unblushingly  adopted  it  along  with  whatever  else 
in  the  Federalist  system  seemed  worth  taking.  Just  how 
early  the  Eepublicans  began  to  follow  Federalist  prece- 
dent in  this  respect  is  not  known  definitely.  Mr.  Henry 
Adams  states  that  during  the  six  years  of  Gallatin's 
career  in  Congress  there  were  only  two  "meetings  of  his 
party  associates  in  Congress  called  to  deliberate  on  their 
political  action."  These  two  occasions  were  in  1796, 
during  the  debate  on  the  Jay  Treaty,  and  in  1798,  during 
the  discussion  of  the  attitude  of  the  French  Directory.49 
This  would  indicate  that  the  caucus  was  not  regularly 
used  by  the  Jeffersonians.  The  party,  however,  was  more 
familiar  with  that  bit  of  legislative  machinery  than  Mr. 
Adams'  statement  implies,  and  there  were  certainly 
other  Eepublican  caucuses  during  that  period.  As  a 
matter  of  fact  the  leaders  of  the  party  lived  at  the  same 
hotel,  so  they  might  he  said  to  have  been  in  informal 

48  Hamilton,  WorTcs,  VI,  523. 

This  custom  of  settling  important  questions  in  caucus  was  continued 
by  the  Federalists  after  the  election  of  1800.  Regarding  the  repeal  of 
the  Judiciary  Act,  Bayard  wrote  Hamilton  that  there  would  be  a  meeting 
"to  concert  an  uniform  plan  of  acting  or  acquiescing  before  Congress 
adjourns.  .  .  ."  Ibid.,  539.  See  also  Gibbs,  Fed.  Adm.,  I,  331,  Goodrich 
wrote  that  the  Federalists  had  decided  to  "risque  the  consequences  of 
delay,  and  prolong  the  debates, "  in  the  hope  that  some  pressure  might  be 
brought  to  bear  on  the  representatives  by  their  constituents. 

49  Adams,    Gallatin,   p.    214.     Caucuses    were   held   on   those   occasions. 
Goodrich  hints  at  united  action  on  the  part  of  the  opposition  at  that  time, 
and  implies  that  Republican  action  was  the  outcome  of  preconcert.    Gibbs, 
Fed.  Adm.,  I,  331,  335.    With  reference  to  the  threatened  war  with  France, 
Jefferson   reports   the    device    adopted   by   the    Republicans   to    get    their 
resolutions   before   the   House.      The   resolutions    were    referred    to   by   a 
Federalist  paper  as  the  "result  of  the  united  wisdom  and  deliberation  of 
the  opposition  party. "    Jefferson,  Writings,  VII,  224;  Col.  Cent.,  April  4, 
1798. 


THE  JEFFERSONIAN  REGIME  187 

caucus  most  of  the  time.50  It  was  reported  in  1796  that 
the  Republicans  held  a  caucus  to  decide  on  a  candidate 
for  the  vice-presidency.51  In.  1799  the  Columbian  Centi- 
nel  printed  the  following:  " Among  the  extraordinaries 
of  the  day,  may  be  ranked  the  caucussing  of  the  Jacobins 
at  Philadelphia,  in  favor  of  Mr.  Rutledge,  of  South- 
Carolina,  as  Speaker,  in  opposition  to  Mr.  Sedgwick, 
because  the  latter  is  a  northern  man."52  Then,  while  the 
Federalists  were  holding  their  caucuses  during  the  elec- 
tion of  1800,  their  opponents  were  busy  in  the  same 
way.53 

The  Republicans  certainly  became  familiar  with  the 
caucus  before  the  election  of  1800,  and  from  the  seventh 
Congress  on  they  made  regular  use  of  it.  The  Federalist 
newspapers  of  1802  were  constantly  referring  to  Repub- 
lican caucuses.  "The  Democrats  in  Congress,"  ran  an 
item  in  the  Washington  Federalist,  "are  adopting  of  late 
quite  an  economical  plan  of  making  laws. — All  business 
is  to  be  settled  in  caucuses  before  it  comes  before  the 
House ;  and  the  arguments  or  motives  be  given  in  news- 
papers afterwards.  The  federal  members  are  to  be 
treated  as  nullities.  "54  The  same  paper  charged  that  the 
decision  regarding  important  bills  was  not  made  in  the 
House,  but  in  the  caucus.55  Bayard,  a  Federalist,  speak- 
ing during  the  debate  on  the  repeal  of  the  act  establish- 
ing the  district  courts,  referred  to  the  caucus,  and  was 
called  to  order  for  so  doing.  That  was  in  1802,  and  was 

so  "South  Carolina  Federalists, "  Am.  Hist.  Eev.,  XIV,  787. 
si  Hid.,  780. 

52  Col.  Cent.,  December  7,  1799. 

53  Wash.  Fed.,  February  10,  1801;   "It  is  said  a  Jeffersonian  Caucus 
met  last  Friday  evening.     For  special  reasons,  the  meeting  was  not  held 
in   Washington   but   in    Georgetown. — The   Democratic    Eepresentatives    in 
Congress,  with  their  Genevan  Director  and  his  Subalterns,  were  generally 
present. ' ' 

54  Hid.,  February  6,  1802. 

d.,  January  28,  1802. 


188         DEVELOPMENT  OF  LAWMAKING 

apparently  the  first  mention  of  the  institution  in  the 
House.?6  It  was  charged  that  at  these  meetings  either 
Jefferson  or  Duane  always  presided.57 

The  following  breezy  account  is  a  good  example  of 
Federalist  comment  on  Republican  affairs.  "At  a  cau- 
cus held  in  the  dancing  assembly  room,  back  of  Stiles' 
boarding  house,  New  Jersey  Avenue,  on  the  night  follow- 
ing the  20th  of  January,  in  the  year  of  grace  1802,  but  the 
1st  of  pure  democracy. 

Johnny  Randolph  in  the  chair. 

Mr.  Elmendolph  moved  that  there  be  a  Secretary,  and 
nominated  himself  for  the  appointment."  "Chairman. 
Gentlemen,  fellow  servants  of  the  people,  our  last  caucus, 
in  which  was  determinjed  the  bill,  for  the  diminution  of 
the  army,  was  advanced  to  this  night,  to  decide  on  the 
bill  for  a  naval  armament  against  Tripoli ;  and  the  ques- 
tion is,  shall  it  pass  without  amendments — and  without 
debate  too,  said  Mr.  Davis  of  Kentucky,  with  a  sneer,  and 
putting  on  his  hat,  withdrew.  This  roused  Mr.  Claiborne, 
who,  flourishing  his  hand,  holding  his  hat  and  stick,  said, 
Mr.  Chairman,  I  am  sorry  that  we  agreed  in  our  last 
caucus  to  pass  the  Military  bill,  without  saying  anything 
against  it ;  citizen  Davis  is  very  angry,  and  I  myself  think 
it  will  never  do ;  we  ought  to  be  allowed  to  make  speeches 
against  expense,  all  kinds  of  expense,  no  matter  how  we 
vote,  let  our  speeches  be  printed,  and  we  can  tell  our 
constituents  the  federalists  carried  the  vote  .  .  .  and  I 
understood  we  had  agreed  so,  for  most  of  our  side,  talk 
one  side  and  vote  t'other  .  .  .  here  the  caucus  was  inter- 
rupted by  the  entrance  of  the  attorney  general,  who  de- 
clared .  .  .  that  their  great  coats  should  suspend  them- 
selves before  the  windows,  to  prevent  the  prying  eyes  of 
aristocracy  from  telling  who  were  assembled;  this  was 

56  Annals,  7  Cong.  1,  480. 

67  Wash.  Fed.,  February  21,  1802. 


THE  JEFFERSONIAN  REGIME  189 

immediately  done,  but  one  window  remaining  unveiled, 
after  all  the  great  coats  were  applied;  John  Smith  of 
New  York  proposed,  that  Col.  Varnum  should  stand  with 
his  face  to  that,  which,  from  its  broad  shape  and  sable 
hue,  he  believed  would  interrupt  vision  as  well  as  a  great 
coat ;  but  to  avoid  accident,  he  moved  that  Mr.  Jones  of 
Philadelphia  and  Dr.  Archer  of  Maryland  should  back 
him."58 

Perhaps  the  best  description  of  the  caucus  as  the  real 
legislature  is  that  in  the  speech  of  Josiah  Quincy,  the 
radical  Federalist  from  Massachusetts.  "But,  sir,9'  he 
said  in  speaking  of  the  bill  for  the  extra  session  of  Con- 
gress, "with  respect  to  this  House,  I  confess  I  know  not 
how  to  express  my  opinion.  To  my  mind,  it  is  a  political 
non-descript.  It  acts,  and  reasons,  and  votes,  and  per- 
forms all  the  operations  of  an  animated  being,  and  yet, 
judging  from  my  own  perceptions,  I  cannot  refrain  from 
concluding  that  all  great  political  questions  are  settled 
somewhere  else  than  on  this  floor."  The  Speaker  called 
him  to  order,  and  Quincy  went  on:  "If  the  Speaker 
means  that  I  have  not  a  right  to  state  facts,  and  leave  the 
people  to  make  reflections  upon  them,  I  must  appeal  from 
his  decision. ' '  Quincy  then  proceeded  to  state  facts  which 
proved  his  assertion.  "The  fact  to  which  I  allude  hap- 
pened on  the  day  when  the  enforcing  embargo  law  was 
passed.  On  that  day,  before  the  House  was  called  into 
a  Committee  of  the  Whole  upon  the  bill,  I  was  informed 
that  it  had  been  resolved  somewhere,  I  know  not  where, 
nor  by  whom,  that  the  House  should  be  called  into  Com- 
mittee of  the  Whole  immediately  upon  that  bill — that  it 
was  to  be  passed  in  one  day  through  all  the  remaining 
stages — that  the  bill  was  then  actually  engrossed,  or 
engrossing,  and  that  after  it  was  so  passed,  a  bill  was  to 
be  proposed  and  passed  for  calling  an  extraordinary  ses- 

ss  Wash.  Fed.,  January  23,  1802. 


190         DEVELOPMENT  OF  LAWMAKING 

sion  of  Congress  in  May  next.  This  was  stated  to  me, 
previous  to  the  going  into  Committee  of  the  Whole  on 
the  enforcing  embargo  bill,  as  the  course  settled.  Well — 
what  happened?  Why,  agreeably  to  the  information  I 
had  received,  we  were  immediately  called  into  a  Com- 
mittee of  the  Whole,  on  the  bill.  We  did  pass  it,  through 
all  the  remaining  stages  at  one  session,  notwithstanding 
the  multitude  of  its  provisions,  the  greatness  of  the  prin- 
ciple and  consequences  it  involved.  So  far  my  previous 
information  proved  correct.  It  will  also  be  recollected 
that  in  the  course  of  the  nocturnal  session  on  that  bill, 
the  gentleman  from  Pennsylvania  (Mr.  Smilie)  did  state 
it  as  his  intention  to  bring  forward  a  bill  for  a  meeting 
of  Congress  in  May,  and  accordingly,  the  next  day  he 
introduced  the  motion,  which  was  the  foundation  of  the 
present  bill.  Thus  again  my  previous  information  was 
proved  by  the  event  accurate. ' >59 

Several  Eepublicans  spoke  in  reply,  not  to  contradict, 
because  contradiction  of  known  facts  is  somewhat  diffi- 
cult, but  to  explain  why  they  transacted  business  in  that 
way.  One  Williams,  for  instance,  argued  that  the  tactics 
of  the  Federalists  forced  such  a  course  upon  the  major- 
ity. "Gentlemen  in  the  minority  all  went  to  dinner, 
leaving  one  gentleman  behind  them  to  call  for  the  yeas 
and  nays  and  make  motions  till  they  came  back.  .  .  . 
When  that  course  of  proceeding  was  adopted,  there  was 
a  kind  of  instantaneous  determination  of  the  majority 
of  the  House  to  take  the  question."60  Instantaneous 
determinations  must  have  come  frequently,  and  they 
struck  the  majority  with  a  most  curious  uniformity. 

Some  of  the  Federalists,  such  as  Quincy  and  Pickering, 
were  extremely  bitter  in  their  denunciation  of  this 
method,  first  introduced  by  their  friends,  and  then  used 

59  Annals,  10  Cong.  2,  1143. 
eo  IUd.,  1147. 


THE  JEFFERSONIAN  REGIME  191 

so  effectively  by  their  opponents.  Pickering  was  so 
wrought  up  that  he  advocated  secession.  "And  must 
we,  with  folded  hands,  wait  the  result?  or  timely  think 
of  other  protection?  This  is  a  delicate  subject.  The 
principles  of  our  revolution  point  to  the  remedy — a  sepa- 
ration. That  this  can  be  accomplished,  and  without  spill- 
ing one  drop  of  blood,  I  have  little  doubt.  One  thing  I 
know,  that  the  rapid  progress  of  innovation,  of  corrup- 
tion, force  the  idea  upon  many  a  reflecting  mind.  Indeed 
we  are  not  uneasy  because  '  unplaced ':  But  we  look  with 
dread  on  the  ultimate  issue ;  an  issue  not  remote,  unless 
some  new  and  extraordinary  obstacle  be  opposed,  and 
that  speedily.  For  paper  constitutions  are  become  as 
clay  in  the  hands  of  the  potter.  The  people  of  the  East 
cannot  reconcile  their  habits,  views,  and  interests  with 
those  of  the  South  and  West.  The  latter  are  beginning 
to  rule  with  a  rod  of  iron.  When  not  convenient  to  vio- 
late the  Constitution,  it  must  be  altered;  and  it  will  be 
made  to  assume  any  shape  as  an  instrument  to  crush  the 
federalists.  "61 

If  more  democracy  was  injected  into  American  govern- 
ment by  Jefferson  and  his  followers,  that  fact  could  never 
be  deduced  from  the  records  of  Congress.  The  House  of 
Representatives  was  just  as  much  dependent  upon  the 
executive  as  it  had  been  at  the  height  of  Hamilton's 
career.  On  the  other  hand  there  is  evidence  of  develop- 
ment in  the  opposite  direction.  In  his  eminently  success- 
ful attempt  to  overcome  friction  within  Republican  ranks, 
Jefferson  had  really  built  up  a  highly  centralized  system. 
The  party  following  was  drilled  to  act  together  in  cau- 
cus, where  the  individual  member  was  induced  to  relin- 
quish his  cherished  privilege  of  blocking  the  wheels  of 
action.  But  the  caucus  was  only  the  rehearsal,  so  to 

«i  Pickering  MSS.  XIV,  93,  January  29,  1804;  cf.  ibid.,  106,  and  J.  Q. 
Adams,  Memoirs,  I,  465. 


192         DEVELOPMENT  OF  LAWMAKING 

speak,  and  there  was  always  the  possibility  that  in  the 
regular  performance  in  Congress  some  unruly  Repub- 
lican  might  cast  off  party  trammels  and  vote  as  he 
pleased.  To  guard  against  such  a  contingency  Jefferson 
made  it  a  practice  to  keep  a  recognized  leader  in  the 
House,  whose  duty  it  was  to  see  that  members  "  voted  as 
was  right."  The  infallibility  of  Jefferson  in  the  politi- 
cal field  was  like  unto  that  of  the  pope  in  the  spiritual, 
and  denial  of  his  inspiration  was  heresy,  punishable  by 
political  death.  Good  Eepublicans  such  as  John  Ran- 
dolph, for  instance,  who  insisted  upon  the  right  of  inde- 
pendent judgment,  were  promptly  read  out  of  the  party. 
It  seemed  a  far  cry  to  democracy  when  the  President 
insisted  upon  doing  the  thinking  for  Congress  and  regu- 
lating the  actions  of  its  members. 

During  all  of  his  first  term  and  for  a  greater  part  of 
his  second  Jefferson  succeeded  in  dominating  the  party 
which  he  had  helped  to  create.  Caucus  and  Congres- 

/sional  floor  leader  looked  to  him  for  advice  and  direction. 
But  the  development  of  this  very  machinery  made  possi- 
ble a  radical  change  in  the  relationship  between  execu- 
tive and  legislature.  There  was  nothing  to  prevent  some 
of  the  influential  members  of  the  House  from  getting  con- 
trol of  the  party,  and  through  it  of  the  whole  administra- 
tion. The  House  might  at  any  time  place  one  of  its  real 
leaders  in  the  Speaker's  chair,  and  clothe  him  with  all 
the  power  formerly  enjoyed  by  Jefferson's  floor  lead- 
ers. When  the  party  organization  became  powerful 
enough  to  elect  the  president,  as  it  practically  did  in 

f  1808,  the  end  of  executive  control  was  already  in  sight. 
Jefferson  brought  order  out  of  the  chaos  in  his  party 
through  an  effective  organization,  but  in  so  doing  he 
lost  sight  of  the  Eepublican  ideal  of  the  earlier  period. 
According  to  those  original  principles,  the  House  of 
Eepresentatives  should  have  been  the  most  important 


THE  JEFFERSONIAN  REGIME  193 

factor  in  the  government.  By  getting  control  of  that 
very  party  organization  which  threatened  permanently 
to  eclipse  such  theories,  Congressional  leaders  were  able 
to  transfer  the  attributes  of  sovereignty  from  the  presi- 
dent to  the  House  of  Representatives.  Madison's  presi- 
dency was  the  transitional  period  during  which  this  read- 
justment of  the  relations  between  the  two  branches  of 
the  government  was  actually  brought  about. 


CHAPTER  XI 
MADISON  AND  CONGEESS 

By  his  masterly  success  in  overcoming  factional  dif- 
ferences, Jefferson  proved  to  the  country  that  as  a  polit- 
ical leader  he  was  almost  without  a  rival.  Few  presi- 
dents have  had  a  more  disjointed,  refractory  party  to 
deal  with,  and  none  has  a  higher  reputation  for  clever- 
ness in  management.  For  almost  eight  years  he  held  his 
forces  together,  and,  displaying  sometimes  a  stubborn 
firmness,  again  a  conciliatory  spirit  amounting  almost 
to  weakness,  he  forced  the  adoption  of  the  program  of 
the  administration. 

Madison  succeeded  to  Jefferson's  office  but  not  to  his 
ability.  Theoretically  he  was  the  party  chieftain,  but 
in  that  position  he  displayed  lack  of  power  and  want  of 
political  wisdom  as  unpleasantly  pronounced  and  con- 
spicuous as  it  was  pathetic.  Some  of  his  difficulties  were 
due  to  his  own  temperament  and  personality,  for  he  was 
never  meant  to  be  a  leader  of  men.  But  he  was  in  large 
measure  the  victim  of  circumstances.  Jefferson  had 
made  the  Republican  party,  and  as  maker  he  ruled  it. 
The  party  in  its  turn  made  Madison  president,  and  what 
need  was  there  to  bow  before  the  idol  it  created?1 

Madison's  real  troubles  began  even  before  his  inaugu- 
ration. Worn  out  and  discouraged  because  of  growing 
opposition,  Jefferson  laid  down  the  burdens  of  office  in 
the  winter  of  1809.  Early  in  January,  the  House  broke 

i  Madison 's  troubles  as  a  machine-made  president  are  discussed  at  length 
in  a  letter  from  Pickering  to  Cabot,  March  19,  1810 ;  Pickering  MSS.  XIV, 
279. 


MADISON  AND  CONGEESS  195 

away  from  executive  control,  and  assumed  for  itself  the 
responsibility  of  deciding  upon  the  wisdom  of  various 
measures.  For  one  thing,  in  spite  of  Gallatin's  heated 
objections,  it  passed  a  bill  to  fit  out  the  navy.2  Less  than 
a  month  afterwards  Congress  struck  another  vigorous 
blow  at  the  administration  by  repealing  Jefferson's 
favorite  measure,  the  Embargo,  and  with  that  the  firmly 
knit  and  intimate  connection  between  executive  and  legis- 
lature came  to  an  abrupt  end.  Even  in  the  caucus,  where 
the  repeal  was  really  carried,  the  Congressional  major- 
ity seemed  determined  to  break  completely  with  Repub- 
lican custom.  "The  Caucus  at  Washington,  on  Monday 
evening, "  ran  one  account,  "was  rather  a  public  than  a 
private  meeting.  The  doors  were  not  closed.  Several 
moderate  republicans,  and  one  federalist,  attended.  Mr. 
Giles  made  an  able  speech,  in  a  style  compassionate  and 
conciliatory  towards  the  eastern  People.  Messrs.  Eppes 
and  J.  G.  Jackson  abandoned  the  War  System.  It  was 
decided  by  61  votes  to  2  to  EEPEAL  THE  EMBAEGO 
on  the  4th  of  March  next.  Messrs.  Bassett  and  Taylor 
were  the  dissentients.  It  was  decided  not  to  issue  Letters 
of  Marque.  The  question  of  an  Armed  Commerce  was 
fairly  left  open  for  decision  in  the  House.  The  Volun- 
teer Army  Bill  was  given  up.  A  NON-INTEECOUESE 
LAW  is  to  be  passed,  to  take  effect  at  a  distant  day,  if 
another  effort  for  Peace  shall  fail.  An  AEMY  of  Six- 
teen Thousand  Men  is  to  be  raised,  and  the  Executive  is 
to  be  authorized  to  borrow  TEN  MILLIONS  OF  DOL- 
LAES."3 

The  strength  of  the  opposition  was  again  emphasized 
by  the  action  of  the  Senate  in  the  case  of  the  non-inter- 
course act.  Senator  Pickering  had  planned  to  speak 
against  it,  but  he  was  refused  permission.  He  wrote  that 

2  Adams,  Gallatin,  pp.  385-387. 

sSpooner's  Vermont  Journal,  no.  1335,  February  20,  1809,  quoting  from 
the  Freeman's  Journal  of  February  10. 


196         DEVELOPMENT  OF  LAWMAKING 

"the  Admn  men,  duly  prepared  in  caucus  were  ready  to 
adopt  it  without  discussion.  I  asked  for  an  explanation 
of  the  material  parts  of  the  bill  and  their  necessary  oper- 
ation: but  this  was  denied  us.  And  when  I  desired  a 
postponement  only  till  the  next  day ;  and  tho '  it  was  then 
past  four  o'clock,  this  request  was  refused,  and  the  bill 
passed."*  Although  he  attributed  this  measure  to  the 
"  administration, "  Pickering  was  clearly  in  error.  The 
measure  was  decided  upon  in  an  anti-administration  cau- 
cus, and  all  the  other  evidence  shows  that  by  this  time  the 
insurgents  had  full  control.  The  Federalists  did  not 
realize  that  an  important  change  was  going  on  in  the 
government  itself.  Hitherto  the  initiative  had  been  im- 
parted by  the  president  and  his  friends,  but  from  this 
time  on  until  the  ".reign"  of  Andrew  Jackson  the  guid- 
ing power  is  to  be  found  in  other  quarters. 

For  the  time  being  the  reins  were  seized  by  a  small 
group  in  the  Senate,  the  commands  of  which,  even  in 
matters  relating  to  his  own  cabinet,  Madison  was  uncere- 
moniously compelled  to  obey.  The  president  desired  to 
transfer  Gallatin  to  the  State  department,  but  he  was 
forced  to  forego  that  plan,  and  to  appoint  instead  a 
worthless  nonentity  in  the  person  of  one  Eobert  Smith. 
The  leaders  of  this  hostile  group  were  General  Smith, 
brother  of  the  new  Secretary  of  State,  and  Wilson  Gary 
Nicholas,  their  brother-in-law.  In  the  face  of  the  attacks 
of  this  new  triumvirate  the  administration  succumbed, 
and  Madison  could  hardly  have  played  a  less  important 
part  during  those  eight  uncomfortable  years  if  he  had 
remained  in  Virginia.5 

Madison's  difficulties  in  the  winter  of  1809  were  only 
a  warning  of  more  troubles  to  come.  While  it  refused 
to  act  in  harmony  with  the  administration,  the  eleventh 

*  Pickering  MSS.  XIV,  230. 

s  Adams,  Gallatin,  pp.  388-391.  Contemporaneous  account  written  by 
John  Quincy  Adams. 


MADISON  AND  CONGRESS  197 

Congress  was  so  devoid  of  talent  that  it  could  accomplish 
nothing  by  itself.  The  characteristics  of  its  two  sessions 
were  unintelligent  discussion  and  lack  .if  positive  action, 
to  which  the  Annals  are  a  lasting  and  unpleasant  memo- 
rial. It  had  no  policy,  and  the  members  rambled  on 
indefinitely  about  foreign  relations  in  general  and  non- 
intercourse  in  particular. 

To  be  sure  Madison  still  had  Gallatin 's  assistance,  but 
the  latter  was  persona  non  grata  to  Congress,  so  that 
nothing  could  be  accomplished  through  him.  He  drafted 
the  measure  known  as  Macon's  Bill  number  one,  the 
object  of  which  was  to  exclude  both  French  and  British 
vessels  from  American  ports,  but  his  personal  enemies 
defeated  it  in  the  Senate.6 

After  the  first  session  had  dragged  on  for  nearly  five 
months,  Madison  wrote  to  Jefferson  that :  *  '  Cong8  remain 
in  the  unhinged  state  which  has  latterly  marked  their 
proceedings ;  with  the  exception  only  that  a  majority  in 
the  H.  of  E.  have  stuck  together  so  far  as  to  pass  a  Bill 
providing  for  a  conditional  repeal  by  either  of  the 
Belligts  of  their  Edicts; 

Matters  steadily  went  from  bad  to  worse,  and  in  the 
second  session  Congress  was  able  to  strike  a  telling  blow 
at  Gallatin.  The  bill  for  the  recharter  of  the  National 
Bank  was  defeated  in  the  Senate  by  the  casting  vote  of 
the  vice  president.  Thus  in  the  face  of  a  threatened 
crisis  in  foreign  relations  the  Treasury  was  deprived  of 
the  services  of  a  very  badly  needed  financial  agent.8 

The  president's  position  was  perfectly  obvious  to  his 
contemporaries.  John  Randolph  of  Eoanoke,  never  hap- 
pier than  when  a  lively  political  fracas  was  in  progress, 
wrote:  "The  truth  seems  to  be  that  he  (Madison)  is 
President  de  jure  only.  Who  exercises  the  office  de  facto 

«  Adams,  Gallatin,  pp.  413,  415. 

7  Madison,  Writings,  VIII,  95,  April  23,  1810. 

8  Adams,  Gallatin,  pp.  426-429,  February  20,  1811. 


198         DEVELOPMENT  OF  LAWMAKING 

*  I  know  not,  but  it  seems  agreed  on  all  hands  that  *  there 
is  something  behind  the  throne  greater  than  the  throne 
itself'  .  .  .  "  Then,  concerning  Gallatin,  he  continued: 
"If  his  principal  will  not  support  him  by  his  influence 
against  the  cabal  in  the  ministry  itself,  as  well  as  out  of 
it,"  he  ought  to  resign.  "Our  Cabinet  presents  a  novel 
spectacle  in  the  political  world;  divided  against  itself, 
and  the  most  deadly  animosities  raging  between  its 
principal  members.  .  .  .  "  Three  days  later  he  thus 
summarized  his  observations:  "The  Administration  are 
now  in  fact  aground  at  the  pitch  of  high  tide,  and  a 
spring  tide  too.  Nothing,  then,  remains  but  to  lighten 
the  ship,  which  a  dead  calm  has  hitherto  kept  from  going 
to  pieces.  If  the  cabal  succeed  in  their  present  projects, 
and  I  see  nothing  but  promptitude  and  decision  that  can 
prevent  it,  the  nation  is  undone."9 

Placed  in  such  an  intolerable  situation,  Gallatin  could 
do  nothing  less  than  offer  his  resignation.  In  a  masterly 
analysis  of  the  difficulties  under  which  he  and  his  chief 
had  labored,  he  set  forth  his  reasons  for  wishing  to  with- 
draw. In  such  a  government  as  that  of  the  United  States, 
he  wrote,  "it  appears  to  me  that  not  only  capacity  and 
talents  in  the  Administration,  but  also  a  perfect  heartfelt 
cordiality  amongst  its  members,  are  essentially  neces- 
sary to  command  the  public  confidence  and  to  produce  the 
requisite  union  of  views  and  action  between  the  several 
branches  of  government.  In  at  least  one  of  these  points 
your  present  Administration  is  defective.  ...  New  sub- 
divisions and  personal  factions,  equally  hostile  to  your- 
self and  to  the  general  welfare,  daily  acquire  additional 
strength.  Measures  of  vital  importance  have  been  and 
are  defeated;  every  operation,  even  of  the  most  simple 
and  ordinary  nature,  is  prevented  or  impeded;  the  em- 

9  Adams,  Gallatin,  pp.  430,  431,  Eandolph  to  Nicholson,  February  14,  17, 
1811. 


MADISON  AND  CONGRESS  199 

barrassments  of  government,  great  as  from  foreign 
causes  they  already  are,  are  unnecessarily  increased; 
public  confidence  in  the  public  councils  and  in  the  Execu- 
tive is  impaired,  and  every  day  seems  to  increase  every 
one  of  these  evils.  Such  a  state  of  things  cannot  last ;  a 
radical  and  speedy  remedy  has  become  absolutely  neces- 
sary. ...  I  clearly  perceive  that  my  continuing  a  mem- 
ber of  the  present  Administration  is  no  longer  of  any 
public  utility,  invigorates  the  opposition  against  your- 
self. ..."  Consequently  he  tendered  his  resignation.10 
Madison,  however,  did  not  wish  to  part  with  the  ablest 
Republican  in  office,  and  Gallatin  held  his  position  until 
May,  1813,  when  he  welcomed  the  chance  to  go  abroad 
as  one  of  the  peace  commissioners.11 

The  twelfth  Congress  was  the  very  opposite  of  its 
inactive,  blundering,  leaderless  predecessor.  In  place  of 
those  mediocrities  who  could  do  nothing  better  than  pre- 
vent the  enactment  of  Gallatin 's  proposals,  there  ap- 
peared that  famous  group  of  impulsive,  energetic  young 
Americans  of  the  west  and  south,  the  "war  hawks "  of 
1812.  Clay,  the  new  Speaker,  with  Calhoun  and  Lowndes, 
would  give  tone  to  any  assembly.  Gallatin,  who  tried  at 
first  to  direct  the  new  Congress  as  he  had  tried  to  direct 
the  old,12  failed  again,  but  for  a  very  different  reason. 
With  the  eleventh  Congress  he  could  do  nothing,  because 
it  was  impossible  to  galvanize  a  dead  mass  into  life.  In 

10  Gallatin,  Writings,  I,  495-496,  Gallatin  to  Madison,  March,  1811. 

11  Gallatin  did  not  always  agree  with  Madison.    Monroe,  in  1820,  referred 
to  Gallatin 's  report  concerning  the  condition  of  the  treasury  at  the  begin- 
ning of  the  War  of  1812,  the  tendency  of  which  was  "  exceedingly  unfavor- 
able to  the  measures  then  contemplated  by  Mr.  Madison.'*     J.  Q.  Adams, 
Memoirs,  IV,  500-501. 

12  Pickering  MSS.  XXX,  17,  February  18,  1812.    ".  .  .  indeed  such  has 
been  the  confusion  and  division  among  the  party,  that  no  one  has  hitherto 
discovered   sufficient   influence  to   control   any   great  or   general   question: 
Smilie  who  is  most  notoriously  a  creature  of  Gallatin  the  arch  Jugler  of 
administration  has  talked  &  scolded  again  &  again  but  in  vain."     Eeed 
to  Pickering. 


200         DEVELOPMENT  OF  LAWMAKING 

the  twelfth  there  were  able,  influential  leaders  in  the 
House,  with  a  policy  of  their  own.  To  be  sure  it  took 
them  a  little  time  to  get  control,  but  when  they  did  they 
compelled  the  administration  to  follow  their  lead. 

Disgusted  with  what  seemed  to  them  the  unpatriotic 
yielding  to  European  belligerents,  these  militant  nation- 
alists determined  to  take  their  stand  on  a  policy  of 
aggressive  action.  In  former  years,  the  president  had 
been  able  to  direct  the  foreign  policy  of  the  government, 
and  as  party  leader  he  could  force  the  House  to  sanction 
his  proposed  measures.  In  1812,  instead  of  determining 
what  course  should  be  followed,  Madison,  a  notorious 
pacifist,  found  it  expedient  or  necessary  to  acquiesce  in 
the  war  policy  of  the  majority  in  Congress.  On  May  11, 
Taggart  wrote  Pickering  that  there  was  no  doubt  of  the 
determination  of  the  leaders  to  declare  war,  and  that 
nothing  would  deter  them  except  inability  to  make  it. 
A  "mere  passive  war,"  he  reported,  might  meet  with 
the  approval  of  Jefferson  and  Madison,  but  "it  will  not 
meet  with  the  views  of  the  committee  of  foreign  rela- 
tions and  others  to  whose  implicit  direction  Madison  has 
resigned  up  himself,  because,  as  I  believe,  he  could  in 
no  other  way  secure  their  support  in  his  reelection. ' m 
Madison's  consent  to  war  was  such  a  puzzle  to  his  oppo- 
nents that  they  tried  to  find  some  reasonable  explanation 
for  it,  and  this  opinion  expressed  by  Taggart  was  widely 
circulated  and  generally  believed  by  the  Federalists. 
According  to  report,  a  committee,  including  Clay  and 
Grundy,  had  called  on  Madison,  and  threatened  to  pre- 
vent his  reelection  if  he  would  not  recommend  war; 
rather  than  lose  a  second  term,  the  president  obeyed. 
What  the  real  facts  of  the  case  are  no  one  knows.  It  is 
perfectly  clear  that  if  the  Congressional  caucus  had  re- 
fused to  nominate  Madison,  his  chances  of  reelection 

is  Pickering  MSS.  XXX,  41,  May  11,  1812. 


MADISON  AND  CONGRESS  201 

would  have  been  almost  hopeless.  Certainly  in  1812  the 
nomination  was  delayed  for  some  reason.  It  was  not 
until  May  18  that  the  nominating  caucus  was  held;  in 
1804  it  met  on  February  24,  in  1808  on  January  23,  and 
in  1816  on  March  12.  Foster,  the  British  ambassador  at 
Washington,  asserted  that  the  leaders  waited  until  they 
felt  sure  of  Madison's  attitude  before  they  honored  him 
with  what  was  practically  the  gift  of  a  second  term. 
'  '  The  reason  why  there  has  been  no  nomination  made  in 
caucus  yet,  by  the  Democratic  members,  of  Mr.  Madison 
as  candidate  for  the  Presidency  is,  as  I  am  assured  in 
confidence,  because  the  war  party  have  suspected  him 
not  to  have  been  serious  in  his  late  hostile  measures,  and 
wish  previously  to  ascertain  his  real  sentiments."14 

The  "war  hawks "  might  drag  the  unwilling  Madison 
along  in  their  war  policy,  but  for  several  months  they 
had  some  difficulty  in  holding  their  followers  together  in 
Congress.15  Besides  the  trouble  caused  by  the  Smith- 
Nicholas  faction,  referred  to  above,  there  was  other  lack 
of  harmony  within  Eepublican  ranks  during  the  early 
part  of  the  war.  In  May,  1813,  Webster  wrote  that  "At 
present,  rely  upon  it,  there  is  great  diversity  &  schism, 
among  the  party — how  much  of  this  can  be  remedied,  by 
caucussing  and  drilling,  it  is  not  easy  to  say."  Again, 
' '  If  we  only  had  three  or  four  more  Senators,  we  should 
see  Madison  kick  the  beam. "  "  Poor  Madison ! "  he  wrote 
a  few  days  later, i  1 1  doubt  whether  he  has  a  night 's  sleep 
these  three  weeks — ."  Still  more  specifically,  on  June 
19,  he  wrote:  "The  fact  is,  the  Administration  are,  for 

i*  Foster  to  Castlereagh,  May  3,  1812,  quoted  in  Adams,  Hist,  of  United 
States,  VI,  213.  This  is  the  most  direct  evidence  there  is  on  this  interesting 
point.  The  matter  was  referred  to  in  some  of  Pickering's  correspondence, 
but  he  gives  nothing  but  hearsay  evidence.  Pickering  MSS.  XV,  19,  24,  27. 

On  January  5,  1813,  Josiah  Quincy  charged  in  Congress  that  Madison 
would  not  have  been  reflected  if  he  had  not  promised  to  support  the  war 
policy.  Annals,  12  Cong.  2,  565. 

15  Adams,  Hist,  of  United  States,  VI,  113-219. 


202         DEVELOPMENT  OF  LAWMAKING 

the  moment,  confounded — They  are  hard  pushed  in  our 
house — much  harder  in  the  Senate —  .  .  .  Madison  has 
been  several  days  quite  sick  .  .  .  the  Taxes  go  heavily — 
I  fear  they  will  not  go  at  all — They  cannot  raise  a  Cau- 
cus, as  yet,  even  to  agree  what  they  will  do — They  are  in 
a  sad  pickle,  who  cares?"18 

Then,  with  reference  to  the  proposed  plan  for  raising 
revenue,  Hanson  said  that  system  as  '  '  digested,  method- 
ized, altered,  and  submitted  to  the  House,  .  .  .  was  the 
result  of  a  compromise;  that  a  majority  could  not  be 
carried  along  to  support  it,  but  for  the  modification  em- 
bracing these  reservations;  and  that  a  majority  could 
not  have  been  induced  to  vote  for  the  taxes,  but  upon  the 
express  condition  and  expectation  that  they  would  never 
take  effect ;"  Hanson  referred  to  the  caucus,  held  at  the 
Capitol,  which  resulted  in  nothing,  because  there  was 
"much  dissention  and  wrangling, "  and  which  finally 
broke  up  in  confusion.17 

In  January,  1814,  Potter  of  Ehode  Island  taunted  the 
Republicans  with  their  inability  to  work  together.  Ac- 
cording to  his  understanding  it  was  "not  only  the  right, 
but  the  duty  of  the  majority  to  govern — they  ought  to  be 
true  to  themselves  and  just  to  the  nation — to  lay  down 
their  course  and  pursue  it  ...  without  turning  to  the 
right  or  left,  as  on  them  rests  all  the  responsibility. " 
They  control  the  army  and  the  treasury,  "and  if  they 
have  not  ability  to  devise  a  system  of  measures,  stability 
to  persevere  in,  and  energy  sufficient  to  execute  them, 
they  ought  not  to  find  fault  with  the  minority."  He 
asserted  that  the  administration  had  been  impeded  by 
"their  own  divisions  and  jealousies,  as  well  in  the  Cabi- 
net as  in  the  Senate  and  House  of  Representatives.  .  .  . 
if  the  President  of  the  United  States,  with  his  means  of 

is  Webster,  Letters,  pp.  35,  39,  42-43  (Van  Tyne  ed.). 
n  Annals,  13  Cong.  1,  461. 


MADISON  AND  CONGRESS  203 

information,  could  not  have  selected  from  his  political 
and  personal  friends  four  gentlemen  having  the  same 
general  and  political  interest  with  himself  that  could 
agree  with  him  in  his  measures, "  and  if  the  war  party 
in  the  Senate  and  House  could  not  cooperate,  "how 
could  they  expect  the  minority  to  agree  with  them!"18 

The  foregoing  statements  make  it  clear  that  the  Repub- 
lican leaders  in  Congress  were  not  able  immediately  to 
subject  their  followers  to  the  strict  discipline  of  the  Jef- 
fersonian  regime.  Executive  influence  had  been  thrown 
off,  but  the  House  had  not  yet  acquired  enough  expe- 
rience in  going  alone  to  make  a  good  showing.  The 
Jeffersonian  organization  was  still  in  existence,  but  the 
new  managers  had  not  learned  how  to  operate  it  to  the 
best  advantage.  According  to  Webster,  all  really  impor- 
tant business  was  as  usual  transacted  outside  the  House. 
"In  our  political  capacity, "  he  wrote,  "we,  that  is,  the 
House  of  Representatives,  have  done  little  or  nothing. 
The  time  for  us  to  be  put  on  the  stage  and  moved  by  the 
wires,  has  not  yet  come.  I  suppose  the  'show'  is  now  in 
preparation,  and  at  the  proper  time  the  farce  of  legis- 
lating will  be  exhibited.  I  do  not  mean  to  say  that  the 
*  projects'  will  not  be  opposed,  as  far  as  may  be,  nor  is  it 
certain  that  all  the  Democrats  will  'hang  together,'  on  the 
great  subject  of  taxes ;  but  before  any  thing  is  attempted 
to  be  done  here,  it  must  be  arranged  elsewhere."19 

It  was  not  until  1814  that  the  Clay  contingent  obtained 
such  complete  control  of  the  administration  that  this 
friction  practically  disappeared.  Even  Jefferson  himself 
could  have  done  no  better  in  overcoming  disintegrating 
forces  within  the  party.  With  reference  to  the  restric- 
tions on  commerce  in  force  during  the  war,  Webster  said 
that  the  system  had  been  given  extensive  support,  "be- 

is  Annals,  13  Cong.  2,  1101,  January  21,  1814. 

is  Webster,  Private  Correspondence,  I,  233,  June  4,  1813. 


204         DEVELOPMENT  OF  LAWMAKING 

cause  it  was  attended  with  a  severe  and  efficacious  dis- 
cipline, by  which  those  who  went  astray  were  to  be 
brought  to  repentance.  No  Saint  in  the  Calendar  ever 
had  a  set  of  followers  less  at  liberty,  or  less  disposed  to 
indulge  troublesome  inquiry,  than  some,  at  least,  of  those 
on  whom  the  system  depended  for  support."20  A  letter 
to  the  Columbian  Centinel  brings  out  the  same  idea. 
After  reporting  that  the  repeal  was  not  opposed  by  any- 
one of  importance,  the  writer  continued:  "The  Man- 
agers of  the  Nation  held  their  caucus;  where  the  repeal 
having  been  decreed,  the  President,  Senate,  and  House, 
like  the  old  French  Parliament,  had  nothing  to  do  but  to 
enregister  and  execute  the  edict.  So  moves  our  State 
machine.  "21 

In  the  next  session  King  of  Massachusetts  delivered  a 
tirade  against  the  Republican  system  of  governmental 
management.  "This  consolidation  of  the  different  de- 
partments of  Government,  I  must  observe  to  you,  sir,  is 
one  of  the  high  crimes  which  this  Administration  had 
committed  against  the  Constitution  and  the  American 
people.  For  party  and  corrupt  purposes  you  have 
broken  down  the  barriers  interposed  by  the  Constitution, 
for  the  safety  of  the  people,  between  the  several  depart- 
ments of  power,  whereby  this  Administration,  including 
the  majorities  in  both  Houses  of  Congress,  have  become 
one  unleavened  lump  of  democracy  and  oppression.  Not 
content  with  the  Constitution,  as  you  violently  tore  it 
from  Washington  and  its  other  friends ;  not  content  with 
creeping  under  it,  leaping  over  it,  winding  round  it — now, 
sword  in  hand,  attempting  to  pierce  through  it ;  you  have 
so  altered  it,  changed  it,  and  mangled  it,  to  suit  your 
party  views  and  purposes — to  perpetuate  your  power 
and  misrule — that  the  people  no  longer  know  or  acknowl- 

20  Annals,  13  Cong.  2,  1966,  April  6,  1814. 

21  Col.  Cent.,  April  20,  1814,  letter  from  Washington,  dated  April  13. 


MADISON  AND  CONGRESS  205 

edge  it ;  no  longer  find  under  it  protection  for  their  prop- 
erty or  safety  for  their  lives/'22 

One  of  the  striking  characteristics  of  the  foregoing 
quotations  is  the  radical  change  of  tone  in  the  comments 
on  Congress.  Before  1813,  the  burden  of  the  reports 
from  all  quarters  is  the  lack  of  harmony  within  the  ranks 
of  the  Republicans  themselves.  Their  weakness  was  so 
evident  that  it  furnished  the  Federalists  ample  grounds 
for  ridicule.  By  June,  1813,  Webster's  correspondence 
was  revealing  more  respect  for  the  ability  of  his  politi- 
cal opponents,  and  ten  months  later  he  could  speak  dog- 
matically of  the  "severe  and  efficacious  discipline "  by 
means  of  which  the  Republicans  were  achieving  marked 
successes. 

Concrete  evidence  of  the  thoroughness  of  this  inner 
transformation  of  Congress  can  be  found  in  the  quality 
and  quantity  of  the  legislative  output  in  1816  and  1817. 
After  declaring  war,  the  Republicans  seemed  to  have  no 
carefully  made  plans  or  policies,  and  for  a  time  the  rec- 
ords exhibit  almost  nothing  except  the  vacillations  of  the 
party  in  power.  After  1817  Congress  again  became  an 
active,  lawmaking  body,  as  it  had  been  Before  Jefferson's 
retirement,  and  by  the  end  of  Madison's  second  term  it 
had  three  pieces  of  constructive  legislation  to  its  credit : 
the  Second  Bank,  the  tariff  of  1816,  and  the  bill  for  inter- 
nal improvements. 

It  is  not  surprising  that  the  Federalist  looked  upon 
this  reestablishment  of  Republican  prestige  and  power 
as  a  restoration  of  the  complete  Jeffersonian  system. 
Externally  perhaps  the  Republican  organization  was 
identical  with  that  of  former  days.  Party  measures  were 
not  allowed  to  come  before  the  House  until  they  had 
been  thoroughly  discussed  in  caucus,  and  after  their 
appearance  the  faithful  were  careful  to  follow  party 

22  Annals,  13  Cong.  3,  731,  December  3,  1814. 


206         DEVELOPMENT  OF  LAWMAKING 

mandates  in  their  votes.  To  the  Federalists  it  made  little 
difference  whether  a  measure  originated  with  the  execu- 
tive or  with  Congressional  chieftains ;  in  either  case  they 
were  deprived  of  all  influence  in  shaping  the  policy  of 
the  government. 

Federalist  opinion  to  the  contrary  notwithstanding,  it 
was  virtually  a  new  Congress,  and  a  new  system,  not  a 
reincarnation  of  the  old,  that  was  operating  so  effectively 
at  the  end  of  Madison's  second  term.  The  Eepublican 
organization  had  undergone  a  genuine  transformation. 
In  1807  the  president  had  furnished  the  initiative,  and 
had  been  responsible  for  the  more  important  measures 
introduced  in  Congress.  In  1814  leadership  was  the 
prerogative,  not  of  the  president,  but  of  prominent  mem- 
bers of  the  House  of  Representatives.  A  readjustment 
had  taken  place  within  the  party  caucus,  the  result  of 
which  was  a  transfer  of  the  balance  of  power  from  the 
president  to  Congress. 

This  fact  is  revealed  in  the  legislation  carried  through 
after  the  war.  The  various  measures  referred  to,  such 
as  the  Second  Bank,  the  protective  tariff,  and  Calhoun's 
bonus  bill,  would  never  have  been  recommended  by  a 
Eepublican  of  the  old  school  such  as  Madison,  acting  on 
his  own  responsibility.  They  were  all  nationalistic  in 
tone,  and  they  represented  the  spirit  of  the  younger 
element  in  the  House  of  Representatives.  During  the 
interval  between  the  end  of  the  war  and  his  own  retire- 
ment, for  some  reason  Madison  felt  that  it  was  desirable 
to  agree  with  Congress,  possibly  because  he  found  it 
easiest  to  follow  the  line  of  least  resistance,  or  possibly 
because  of  the  approaching  presidential  election.  He 
was  certainly  not  opposed  to  Monroe's  candidacy.  The 
latter 's  success,  however,  depended  upon  the  support  of 
the  Congressional  caucus,  and  the  president  who  alien- 
ated his  party  could  not  hope  for  influence  in  the  choice 


MADISON  AND  CONGRESS  207 

of  his  successor.  Until  that  important  question  was 
settled  Madison  stayed  with  his  party,  in  spite  of  its 
strikingly  nationalistic  trend.  After  Monroe  was  elected, 
and  after  his  own  term  was  to  all  intents  over,  Madison 
mustered  up  courage  enough  to  assert  himself.  The 
internal  improvements  bill  was  laid  before  him  to  sign. 
With  nothing  more  to  hope  for  or  fear  from  Congress, 
the  president  went  back  to  his  original  party  principles 
and  vetoed  the  bill.  It  is  very  significant  that  he  vetoed 
nothing  else,  and  that  only  on  the  third  of  March,  1817. 

After  the  buoyant  Clay  and  his  associates  got  control 
of  the  Republican  party  organization,  they  were  able  to 
impose  their  views  on  the  policy  of  the  nation  through 
the  medium  of  the  House  of  Eepresentatives.  Their 
activities  naturally  brought  that  body  forward,  and  gave 
it  a  more  conspicuous  place  in  the  scheme  of  government 
than  it  had  ever  enjoyed  before.  This  increasing  promi- 
nence carried  with  it  heavier  responsibilities,  and  made 
necessary  a  more  effective  organization.  Earlier  execu- 
tives had  so  dominated  Congress  that  it  was  not  required 
to  provide  means  for  running  itself.  During  this  inter- 
val of  executive  weakness  and  Congressional  strength  an 
internal  structure  was  evolved  which  would  enable  the 
House  to  perform  its  more  complicated  duties. 

One  significant  manifestation  of  this  changed  order 
was  to  be  observed  in  the  marked  increase  in  the  power 
and  prestige  of  the  presiding  officer  of  the  House ;  under 
Henry  Clay  the  speakership  became  practically  a  new 
office.  Hitherto  members  who  had  held  that  position 
were  chairmen  rather  than  directors  of  the  majority 
party,  and  during  Jefferson's  administration  the  Speaker 
was  subordinate  in  actual  importance  to  the  floor  leader. 
The  president's  personal  representative  had  guided  the 
deliberations  of  the  House,  and  when  necessary  saw  that 
the  dictates  of  the  Commander-in-Chief  were  obeyed.  A 


208         DEVELOPMENT  OF  LAWMAKING 

weak  president  could  not  expect  such  unconditional  sub- 
mission, and  apparently  Madison  had  no  personal  agent 
in  the  House.  Clay,  however,  was  both  Speaker  and 
leader  of  the  majority  party,  something  that  none  of  his 
predecessors  had  ever  been. 

This  development  of  the  speakership  was  accompanied 
by,  if  it  was  not  actually  responsible  for,  another  change 
of  almost  equal  importance.  Under  the  Clay  regime  the 
standing  committee  system  was  firmly  established,  and 
it  was  through  these  subdivisions  that  the  popular 
Speaker  was  able  to  impress  the  stamp  of  his  theories  on 
legislation.  Thus  by  1825,  so  far  as  its  organization  was 
concerned,  the  House  of  Representatives  had  assumed  its 
present  form. 

NOTE.  On  January  5,  1813,  Josiah  Quincy,  a  radical  Federalist,  deliv- 
ered a  speech  in  the  House,  in  which  he  attempted  to  describe  the  striking 
features  of  the  Republican  system  of  government.  His  breezy  words  have 
attracted  more  or  less  attention,  and  because  of  that  they  may  be  worth 
quoting  in  part.  It  should  be  carefully  noted,  however,  that  his  statements 
hold  good  only  for  Jefferson's  two  terms.  Like  other  Federalists  he  failed 
to  realize  the  change  which  followed  Madison's  election.  At  the  time  he 
was  speaking  it  was  not  the  cabinet,  but  the  Clay  following  that  was  the 
determining  factor  in  legislation. 

"It  is  a  curious  fact,"  he  said,  "but  no  less  true  than  curious,  that 
for  these  twelve  years  past  the  whole  affairs  of  this  country  have  been 
managed,  and  its  fortunes  reversed,  under  the  influence  of  a  Cabinet  little 
less  than  despotic,  composed,  to  all  efficient  purposes,  of  two  Virginians 
and  a  foreigner.  ...  I  refer  to  these  circumstances  as  general  and 
undoubted  facts.  .  .  ." 

"I  might  have  said,  perhaps  with  more  strict  propriety,  that  it  was  a 
Cabinet  composed  of  three  Virginians  and  a  foreigner;  because  once  in 
the  course  of  twelve  years  there  has  been  a  change  of  one  of  the  characters. 
But,  sir,  that  change  was  notoriously  a  matter  of  form  than  substance. 
As  it  respects  the  Cabinet,  the  principles  continued  the  same;  the  interests 
the  same;  the  objects  at  which  it  aimed,  the  same." 

"I  said  that  this  Cabinet  had  been  during  these  twelve  years  little  less 
than  despotic.  This  fact  also  is  notorious.  During  the  whole  period  the 
measures  distinctly  recommended  have  been  adopted  by  the  two  Houses  of 
Congress,  with  as  much  uniformity  and  with  as  little  modification,  too,  as 
the  measures  of  the  British  Ministry  have  been  adopted  during  the  same 
period  by  the  British  Parliament.  The  connexion  (sic)  between  Cabinet 
Councils  and  Parliamentary  acts  is  just  as  intimate  in  the  one  country  as 
in  the  other." 


MADISON  AND  CONGRESS  209 

"I  said  that  these  three  men  constituted  to  all  efficient  purposes,  the 
whole  Cabinet.  This  also  is  notorious.  It  is  true  that  during  this  period 
other  individuals  have  been  called  into  the  Cabinet.  But  they  were  all  of 
them  comparatively  minor  men,  such  as  had  no  great  weight,  either  of 
personal  talents  or  of  personal  influence,  to  support  them.  They  were 
kept  as  instruments  of  the  master  spirits.  And  when  they  failed  to  answer 
the  purpose,  or  became  restive,  they  were  sacrificed  or  provided  for.  The 
shades  were  made  to  play  upon  the  curtain.  They  entered.  They  bowed 
to  the  audience.  They  did  what  they  were  bidden.  They  said  what  was 
set  down  for  them.  When  those  who  pulled  the  wires  saw  fit,  they  passed 
away.  No  man  knew  why  they  entered.  No  man  knew  why  they  departed. 
No  man  could  tell  whence  they  came.  No  man  asked  whither  they  were 
gone. ' ' 

"From  this  uniform  composition  of  the  Cabinet,  it  is  obvious  that  the 
project  of  the  master  spirits  was  that  of  essential  influence  within  the 
Cabinet."  He  then  charged  that  the  " leading  influences  want  not  asso- 
ciates, but  instruments  "  therefore  they  filled  the  Cabinet  with  mediocrities, 
and  the  civil  service  with  politicians. 

' '  And  further,  it  is  now  as  distinctly  known,  and  familiarly  talked  about 
in  this  city  and  vicinity,  who  is  the  destined  successor  of  the  present  Presi- 
dent, after  the  expiration  of  his  ensuing  term.  .  .  ."  One  main  object 
of  the  cabinet  is  to  secure  the  succession  for  themselves  and  their  friends. 
' '  This  is  the  point  on  which  the  purposes  of  the  Cabinet,  for  these  three 
years  past,  have  been  brought  to  bear — that  James  the  First  should  be 
made  to  continue  four  years  longer.  And  this  is  the  point  on  which  the 
projects  of  the  Cabinet  will  be  brought  to  bear  for  three  years  to  come — 
that  James  the  Second  shall  be  made  to  succeed,  according  to  the  funda- 
mental rescript  of  the  Monticsllian  dynasty. ' '  Annals,  12  Cong.  2,  562-567. 


CHAPTER  XII 

THE  GROWTH  OF  THE  STANDING  COMMITTEE 

SYSTEM 

The  foregoing  outline  of  Madison's  relations  with 
Congress  brings  out  the  conditions  amidst  which  the 
standing  committee  system  came  into  prominence.  The 
old  legislative  methods  which  had  worked  so  well  under 
the  successful  and  watchful  supervision  of  Hamilton  and 
Jefferson  had  broken  down  in  1809.  During  the  next 
two  years,  as  it  happened,  there  was  no  one  in  the  admin- 
istration or  in  Congress  able  to  bring  about  a  restoration 
of  order.  In  1811  and  thereafter  for  several  years,  some 
of  the  ablest  men  in  public  life  were  to  be  found  in  the 
House  of  Representatives.  The  disorder  and  confusion 
of  the  eleventh  Congress  was  a  challenge  to  their  aggres- 
sive spirits,  and  they  were  ready  enough  to  take  up  the 
responsibilities  involved  in  working  out  and  directing 
the  national  policy.  For  means  to  be  used  in  the  attain- 
ment of  their  ends,  they  employed  the  ruins  of  the  Jeffer- 
sonian  machine,  formidable  enough  in  its  day,  but  sadly 
in  need  of  repair.  For  a  few  years  they  worked  along 
with  nothing  better,  and  while  they  accomplished  some- 
thing, they  were  not  able  completely  to  eliminate  fric- 
tion and  waste.  By  1816  the  House  had  accustomed 
itself  to  the  extensive  use  of  standing  committees,  and 
all  accounts  of  that  time  agree  that  legislation  progressed 
as  smoothly  as  it  had  ever  done  in  the  best  days  of  Hamil- 
ton or  Jefferson.  With  the  Federalists  complaining 
bitterly  of  the  effectiveness  of  the  new  system,  it  is  evi- 


STANDING  COMMITTEE  SYSTEM          211 

dent  that  Clay,  the  brilliant  young  Speaker,  had  solved 
his  problem. 

In  the  early  days,  far  from  being  the  most  striking 
characteristic  of  the  House,  as  it  is  to-day,  the  standing 
committee  was  looked  upon  with  distrust,  and  in  Repub- 
lican ranks  it  encountered  no  inconsiderable  opposition. 
The  first  standing  committee  of  ways  and  means  had 
been  dropped  by  the  Federalists,  not  because  they  dis- 
approved of  it  in  principle,  but  merely  because  it  did  not 
fit  in  with  their  scheme  of  government.  As  far  as  they 
were  concerned  the  Secretary  of  the  Treasury  was  the 
only  agent  needed  in  the  transaction  of  financial  busi- 
ness ;  from  the  point  of  view  of  real  efficiency,  Hamilton 
certainly  was  superior  to  any  Congressional  committee. 

To  some  of  the  Republicans,  on  the  other  hand,  stand- 
ing committees  were  a  positive  evil,  chiefly  because  they 
were  not  authorized  by  the  Constitution.  They  asserted 
that  when  that  document  conferred  certain  powers  and 
duties  upon  the  House  of  Representatives,  it  meant  not 
a  single  member,  nor  a  group  of  individuals,  but  the 
House  itself,  as  an  entity.  It  left  the  members  no  choice 
in  the  matter,  and  it  allowed  them  no  discretion  to  de- 
cide whether  or  not  they  might  select  a  few  of  their 
number  to  act  for  them,  as  agents  in  the  performance 
of  such  obligations.  In  the  second  Congress,  Livermore 
of  New  Hampshire  even  went  so  far  as  to  oppose  the 
appointment  of  a  standing  committee  of  elections,  on 
the  ground  that  jurisdiction  in  contested  elections  had 
been  given  to  the  House  itself.  This  duty,  he  argued, 
could  no  more  be  transferred  to  any  other  body  than  the 
power  of  legislation.  In  spite  of  his  spirited  opposition 
a  standing  committee  was  appointed,  and  either  from  a 
sense  of  humor,  or  from  a  desire  to  defeat  the  purpose 


212         DEVELOPMENT  OF  LAWMAKING 

of  the  appointment,  the  Speaker  made  Livermore  its 
chairman.1 

One  of  the  most  outspoken  advocates  of  this  kind  of 
strict  construction  was  Page  of  Virginia,  who  consist- 
ently opposed  the  reference  of  any  important  measures 
to  committees.  In  the  third  Congress,  when  the  Repub- 
licans proposed  to  appoint  a  select  committee  to  attend 
to  certain  details  of  the  financial  work  of  the  House, 
Page  spoke  vigorously  against  the  appointment.  Plans 
for  raising  revenue  must  originate  in  the  House,  not  in 
a  committee,  he  argued,  and  much  as  he  had  objected 
to  the  reference  of  such  work  to  Hamilton,  he  was  still 
less  in  favor  of  turning  it  over  to  a  committee.  The 
report  of  a  committee  would  carry  even  more  weight 
than  the  report  of  a  secretary,  and  it  would  be  more  diffi- 
cult to  get  rid  of  its  recommendations.  He  did  not  wish 
/  to  see  the  House  relinquish  any  part  of  its  constitutional 
prerogatives.2 

Two  years  later,  in  the  course  of  a  debate  on  a  pro- 
posal to  restrict  the  carrying  trade  of  foreign  vessels, 
Page  tried  to  prevent  reference  of  the  subject  either  to 
the  committee  of  commerce  and  manufactures,  or  to  the 
committee  of  ways  and  means.  Instead  he  advocated 
the  time-honored  practice  of  discussion  in  committee  of 
the  whole.  He  thought  every  subject  should  come  before 
the  House  "unaccompanied  with  the  opinions  of  a  select 
committee,  or  of  any  individual  whatever. "  He  was 
/  /]/  opposed  to  "having  public  measures  smuggled  into  the 
1 1  House,  no  one  could  tell  how."3 

This  fear  of  committees  was  not  confined  to  the  early 
years  of  Congress,  when  opposition  might  be  accounted 
for  on  the  ground  that  the  device  was  unfamiliar.  In 

i  Annals,  2  Cong.  1,  144-145. 
J  *IUd.,  3  Cong.  1,  532. 

y     » Ibid.,  4  Cong.  1,  248.     The  question  was  referred  to  the  committee  of 
1  the  whole.          / 


STANDING  COMMITTEE  SYSTEM          213 

1805,  when  the  House  had  had  time  enough  to  become 
fairly  well  acquainted  with  the  system,  objections  were 
still  occasionally  heard.  The  committee  on  rules  in  that 
year  recommended  the  creation  of  a  standing  committee 
on  public  lands.  Bedinger  voted  against  the  proposal, 
because  he  feared  that  a  "  standing  committee,  vested 
with  the  entire  business  connected  with  the  public  lands, 
should  gain  such  an  ascendency  over  the  sentiments  and 
decisions  of  the  House,  by  the  confidence  reposed  in  them, 
as  to  impair  the  salutary  vigilance  with  which  it  became 
every  member  to  attend  to  so  interesting  a  subject."4 
After  1801  the  Federalists  criticised  the  Eepublicans 
because  of  their  reliance  upon  committees,  but  their 
objections  were  based  on  the  fact  that  they  were  a  Re- 
publican device,  rather  than  to  any  really  serious  feel- 
ing that  the  system  was  intrinsically  wrong.  The  fol- 
lowing quotation  serves  as  a  good  illustration  of  these 
Federalist  comments.  This  particular  writer  alleged 
that  the  Eepublicans  were  constantly  trying  to  increase 
their  power  as  a  party,  "and  to  weaken  and  embarrass 
all  the  regular  departments  and  authorities  of  the  gov- 
ernment that  might  obstruct  their  designs.  More  than 
seven  years  ago,  they  tried  to  shut  the  doors  of  Con- 
gress to  Eeports  from  the  Treasury  Department.  They 
tried  to  put  all  the  business  into  the  hands  of  Committees. 
They  endeavored  to  make  the  House  the  Supreme  Treaty 
making  power,  and  to  reduce  the  President  to  a  cypher. 
The  House,  too,  by  going  on  to  appropriate  every  item 
of  the  public  expenditures  down  to  the  details  of  fifty 
cents,  would  engross  the  whole  executive  business,  and 
as  it  was  impossible  the  House  could  do  it,  the  Com- 
mittees must,  and  the  heads  of  parties  would  govern  and 
manage  the  committees.  "5  As  time  went  on  most  of 

4  Annals,  9  Cong.  1,  286. 

5  Washington  Federalist,  January  14,  1802. 


214         DEVELOPMENT  OF  LAWMAKING 

these  objections  disappeared,  and  standing  committees 
were  taken  as  a  matter  of  course. 

The  growth  of  the  standing  committee  system,  together 
with  certain  important  changes  in  procedure  which  nat- 
urally accompanied  the  development,  went  on  slowly 
after  1794.  The  several  steps  in  the  process  can  be 
traced  in  the  journals,  and  in  the  debates,  but  the  rules 
do  not  serve  as  a  safe  guide.  Customs  and  practices 
were  very  frequently  established  in  the  House  long 
before  they  were  accorded  formal  recognition.  For 
instance,  the  committee  of  ways  and  means  had  been  in 
regular  use  for  seven  years,  and  the  committee  of  for- 
eign relations  for  over  twenty,  before  they  were  added 
to  the  list  of  committees  provided  for  by  rule. 

The  fact  that  standing  committees  had  been  constantly 
in  use  for  years  in  most  of  the  state  legislatures  did  not 
seem  to  have  any  marked  influence  on  Congressional 
procedure.  The  committee  of  elections,  regularly  ap- 
pointed after  the  first  Congress,  was  hardly  a  legisla- 
tive committee  in  the  sense  that  it  played  any  part  in 
the  transaction  of  routine  business.  The  first  addition 
to  this  list  of  one  was  made  in  1794,  by  the  creation  of 
the  committee  of  claims.6  In  the  first  session  of  the 
fourth  Congress  the  revised  rules  provided  for  the 
appointment  of  the  two  committees  mentioned  above,  and 
for  two  others,  one  on  revisal  and  unfinished  business, 
the  duty  of  which  was  to  lay  before  Congress  a  list  of 
temporary  laws  in  need  of  renewal,  and  also  a  list  of 
matters  left  over  from  the  previous  session,  and  the 
other  on  commerce  and  manufactures.7  A  week  later 
Gallatin  moved  the  appointment  of  a  standing  committee 
of  ways  and  means,  which  became  to  all  intents  and  pur- 
poses one  of  the  regular  committees,  although  no  provi- 

e  Annals,  3  Cong.  2,  879. 

7  Ibid.,  4  Cong.  1,  140,  141,  143. 


STANDING  COMMITTEE  SYSTEM          215 

sion  was  made  for  it  in  the  rules  until  1802.8  In  1799 
and  regularly  thereafter  there  was  appointed  a  com- 
mittee on  post  offices  and  post  roads,  although  there  is 
no  mention  of  it  in  the  rules  until  1808.9  A  committee 
on  accounts  was  established  in  1803,  one  on  public  lands 
in  1805,  and  one  on  the  District  of  Columbia  in  1808. 
These  nine  were  all  provided  for  by  rule  when  Clay 
became  Speaker  in  1811.10 

This  formal  list  of  nine,  however,  does  not  show  all 
the  standing  committees  regularly  used  in  the  House 
during  the  twelfth  Congress.  By  this  time  the  presi- 
dent's annual  message  had  become  standardized  to  the 
extent  that  certain  stock  subjects,  so  to  speak,  were 
always  treated  at  greater  or  less  length  therein.  For 
example,  in  his  speech  to  Congress  in  1797  President 
Adams  dealt  with  foreign  relations,  Indian  affairs,  and 
the  general  subject  of  defense.  In  the  House  these 
matters  were  referred  to  so-called  select  committees, 
although  as  a  matter  of  fact  they  remained  in  existence 
throughout  the  session,  and  in  every  respect  conformed 
to  the  definition  of  standing  committees.11  As  time  went 
on  these  committees  on  foreign  affairs,  Indian  affairs, 
the  army,  and  the  navy  became  just  as  important  as  any 
of  those  provided  for  in  the  rules.  In  the  spring  of  1812, 
the  committee  of  foreign  relations  did  not  exist,  accord- 
ing to  the  rules,  yet  in  influence  it  was  fully  the  equal  of 
the  committee  of  ways  and  means.12  In  1815  an  attempt 
was  made  to  bring  the  rules  into  harmony  with  actual 

s  Annals,  4  Cong.  1,  159. 

9  The  first  committee  on  post  offices  and  post  roads  was  appointed  in 
1796.     There  was  none  in  the  fifth  Congress,  but  beginning  with  the  sixth 
Congress  it  was  regularly  appointed.     Annals,  4  Cong.  2,  1598;   ibid.,  6 
Cong.  1,  198. 

10  Ibid.,  12  Cong.  1,  332-334. 

11  Ibid.,  5  Cong.  2,  653-655. 

12  For  other  examples  of  these  appointments,  see  Annals,  10  Cong.  1, 
795,  12  Cong.  1,  334. 


216         DEVELOPMENT  OF  LAWMAKING 

practice  by  adding  to  the  formal  list  six  of  these  com- 
mittees on  the  president's  message.13  For  some  un- 
known reason  the  change  was  not  made,  although  the 
committees  themselves  were  still  regularly  appointed 
and  constantly  used.  In  1822  the  committees  on  Indian 
affairs,  foreign  affairs,  military  affairs,  and  naval  affairs 
were  formally  added.14 

In  the  meantime  other  committees  were  created,  so 
that  in  1825,  when  Clay's  career  in  the  House  came  to 
an  end,  there  were  twenty-five  in  all.  The  new  ones, 
in  order  of  appointment  were :  judiciary  (1813) ;  pensions 
and  Eevolutionary  claims  (1813) ;  public  expenditures 
(1814) ;  private  land  claims  (1816) ;  six  separate  audit- 
ing committees  on  expenditures  respectively  in  the  State, 
Treasury,  War,  Navy,  and  Post  Office  departments,  and 
on  public  buildings  (1816) ;  manufactures  (1819) ;  agri- 
culture (1820).  The  committee  on  manufactures  was  an 
offshoot  of  the  old  committee  of  commerce  and  manu- 
facture. Five  different  attempts  had  been  made  to  divide 
that  committee,  and  in  1819  the  proposal  was  carried.15 

The  general  cause  of  this  development  is  evidently  to 
be  found  in  the  efforts  of  Clay  and  his  friends  to  take 
control  of  the  government;  the  particular  reason  was  a 
steady  increase  in  the  amount  of  routine  work  in  Con- 
gress. A  large  proportion  of  this  business  related  to 
clearly  defined  subjects,  and  it  was  natural  to  classify 
this,  and  to  concentrate  as  much  of  it  as  possible  in  the 
hands  of  a  few  committees.  That  the  committee  form  of 

is  Annals,  14  Cong.  1,  380-381,  385.  Wilde  submitted  the  resolution  to 
add  the  six  following  committees  to  the  list  in  the  rules:  military  affairs; 
naval  affairs;  foreign  affairs;  militia;  roads  and  canals;  ordnance;  forti- 
fications, arsenals,  etc.  The  resolution  was  referred  to  the  committee 
appointed  to  revise  the  rules,  but  nothing  more  was  heard  of  it. 

14  The  rule  providing  for  the  change  was  adopted  in  the  first  session 
of  the  17th  Congress,  but  the  first  appointments  under  it  were  not  made 
until  December  3,  1822.  Annals,  17  Cong.  2,  329. 

15/fcid.,  11  Cong.  1,  230;  11  Cong.  2,  690,  717;  13  Cong.  3,  304; 
14  Cong.  1,  381-382;  16  Cong.  1,  708-710. 


STANDING  COMMITTEE  SYSTEM          217 

organization  seems  to  be  the  natural  one  for  such  bodies 
is  shown  by  the  early — as  well  as  the  more  recent — his- 
tory of  the  House  of  Commons,  and  of  the  various  colo- 
nial and  state  legislatures.  The  House  of  Bepresenta- 
tives  was  not  obliged  to  organize  itself  for  defense 
against  an  aggressive  executive,  because  the  source  of 
authority  of  both  branches  of  the  government  was  the 
same.  Nor  was  it  compelled  to  assume  executive  func- 
tions, because  they  were  attended  to  by  departments  sub- 
ject to  the  control  of  Congress.  Moreover  there  was  no 
real  need  for  a  single  important  committee,  such  as  the 
committee  on  public  bills  in  North  Carolina,  to  give  unity 
and  definite  direction  to  legislation.  That  kind  of  work 
was  being  done  in  the  caucus,  a  body  well  fitted  for  the 
performance  of  such  duties,  because  the  executive  could 
take  part  in  its  deliberations.  What  was  needed  was  a 
more  systematic  method  of  transacting  business,  and 
the  standing  committee  was  a  logical  solution  of  the 
problem. 

These  general  statements  are  borne  out  by  the  orders 
given  to  new  committees  at  the  time  of  their  first  appoint- 
ment. According  to  the  regular  formula  in  which  their 
duties  were  outlined,  the  committees  were  charged  "to 
take  into  consideration  all  such  petitions,  and  matters  or 
things,  respecting "  commerce  or  post  offices  or  what 
not.16  If  more  particular  directions  were  necessary  they 
were  given.  The  committee  of  accounts  for  example  was 
instructed  to  "superintend  and  control  the  expenditure 
of  the  contingent  fund  of  the  House  of  Eepresentatives, 
and  to  admit  and  settle  all«  accounts  which  may  be 
charged  thereon.  "17 

In  the  case  of  the  committee  on  the  District  of  Colum- 

16  Annals,  4  Cong.  1,  141;  9  Cong.  1,  290;  10  Cong.  I,  2127;  11  Cong.  1, 
230;  13  Cong.  1,  123;  13  Cong.  2,  796;  14  Cong.  1,  1451. 

"  Ibid.,  8  Cong.  1,  790.  This  statement  shows  that  the  committee  was 
not  a  committee  of  appropriations  in  any  sense  of  the  word. 


218         DEVELOPMENT  OF  LAWMAKING 

bia  it  was  urged  that  the  purpose  of  the  appointment 
was  to  "simplify  the  business  relating  to  the  district." 
Questions  of  great  national  concern  always  had  prior 
claim  in  Congress,  and  in  order  to  guarantee  proper 
attention  to  the  needs  of  the  District,  its  affairs  were 
placed  in  the  hands  of  a  standing  committee.18 

In  urging  the  creation  of  a  separate  committee  of 
manufactures  Sawyer  argued  that  Congress  ought  to 
have  "employed  on  the  subject  of  manufactures  the  un- 
divided energies  of  the  best  talents  of  the  House;  he 
hoped  that  all  the  rays  of  patriotism  and  genius  in  the 
House  would  be  directed  to  this  subject  as  to  a  focal 
point  at  which  they  should  all  converge. "  Others  who 
spoke  in  favor  of  the  same  measure  emphasized  the 
point  that  the  subject  of  manufactures  was  so  important 
that  it  might  well  occupy  all  the  time  of  a  separate  com- 
mittee.19 The  growing  interest  in  the  protective  prin- 
ciple outside  of  Congress,  and  the  steadily  increasing 
amount  of  legislative  business  in  the  way  of  petitions 
and  bills  concerning  it  created  the  demand  for  this  par- 
ticular committee. 

Although  Clay  is  generally  given  credit  for  the  estab- 
lishment of  the  modern  standing  committee  system,  he 
was  more  interested  in  changes  in  procedure  than  in 
additions  to  the  mere  number  of  committees.  In  fact, 
an  analysis  of  the  course  of  this  growth  shows  that  of 
the  twelve  new  ones  created  during  the  interval  from 
1811  to  1825,  seven  were  merely  auditing  committees,  and 
one  was  the  outgrowth  of  an  old  committee.  Moreover 
Clay  was  Speaker  in  1815,  when  the  attempt  failed  to 
add  to  the  rules  those  six  committees  on  the  president's 
message.  It  may  or  may  not  be  significant  that  Bar- 
bour,  and  not  Clay,  was  Speaker  in  1822,  when  four  of 

is  Annals,  10  Cong.  1,  1486-1487. 

i9ZZnd.,  11  Cong.  2,  690;  14  Cong.  1,  381;  16  Cong.  1,  708. 


STANDING  COMMITTEE  SYSTEM          219 

them  were  finally  so  added.  Again,  the  movement  to 
create  a  separate  committee  of  manufactures  failed 
twice  while  Clay  was  Speaker.  There  is  certainly  no 
evidence  to  indicate  that  he  took  the  slightest  pains  to 
make  any  extensive  additions  to  the  number  of  standing 
committees. 

But  the  fact  that  the  list  of  standing  committees  be- 
came longer  during  the  years  of  Clay's  leadership  in  the 
House  is  by  no  means  the  most  important  phase  of  this 
particular  kind  of  institutional  development.  The  man 
who  made  the  speakership  was  concerned  primarily  with 
improvements  in  methods  of  transacting  business,  and 
it  is  in  this  field  that  Clay  made  his  great  contribution. 
In  particular,  at  this  time,  the  standing  committees  were 
allowed  to  take  charge  of  more  work,  and  were  given 
greater  responsibilities.  It  is  this  aspect  of  committee 
development,  the  process  by  which  committees  were 
gradually  woven  into  the  fabric  of  procedure,  that  is  the 
really  significant  feature  of  Congressional  growth.  Re- 
duced to  its  lowest  terms,  the  change  consisted  in  a  trans- 
fer of  important  functions  from  the  committee  of  the 
whole  to  various  standing  committees. 

During  the  first  decade  of  the  federal  Congress,  im- 
portant measures  were  invariably  discussed  at  length, 
and  general  principles  were  evolved,  in  committee  of  the 
whole.  Not  until  those  preliminary  steps  had  been  taken 
might  a  subject  be  turned  over  to  a  committee  to  be  put 
in  the  form  of  a  bill.  Early  Congresses  were  insistent 
on  that  point.  Nevertheless  the  fact  that  standing  com- 
mittees were  gradually  gaining  ground  at  the  expense 
of  the  committee  of  the  whole  can  be  observed  in  pro- 
tests against  the  new  procedure.  All  along  there  is  evi- 
dence that  the  champions  of  the  old  order  were  conscious 
of  this  process  of  transition,  and  that  they  were  doing 
their  best  to  prevent  it.  It  was  not  alone  in  the  first 


220         DEVELOPMENT  OF  LAWMAKING 

Congress  that  the  Virginians,  and  others  too,  for  that 
matter,  were  "  stiff  and  touchy "  concerning  the  com- 
mittee of  the  whole.  For  several  years  the  Bepublicans 
manifested  a  disinclination  to  depart  from  what  they 
considered  the  only  democratic  form  of  procedure. 

In  the  beginning  the  committees  of  the  House,  both 
select  and  standing,  had  been  used  almost  entirely  in 
connection  with  merely  routine  work.  No  power  of  ini- 
tiative was  given  to  them.  In  1796,  for  instance,  when  the 
House  was  discussing  a  resolution  having  for  its  object 
the  restriction  of  the  carrying  trade  to  American  vessels, 
a  very  logical  motion  was  made  to  refer  the  subject  to 
the  committee  of  commerce  and  manufactures.  Gilbert 
said  that  the  House  had  lately  appointed  standing  com- 
mittees for  considering  certain  particular  subjects,  and 
if  the  proposal  under  discussion  related  to  any  one  of 
those  committees,  it  ought  to  be  so  referred,  "in  pur- 
suance of  the  system  adopted  here  for  doing  business. " 
"If  it  were  a  proposition  respecting  revenue, "  he  con- 
tinued, "it  would,  without  hesitation,  be  referred  to  the 
Committee  of  Ways  and  Means;  and  if  we  would  uni- 
formly pursue  the  course  of  transacting  the  business 
lately  settled  by  the  House,  there  would  be  no  hesitation 
in  referring  the  proposition,  in  the  first  instance,  to  the 
Committee  of  Commerce."  This  very  sane  exposition 
of  the  function  of  the  committees  did  not  accord  with  the 
views  of  the  majority.  Madison  in  particular  objected 
to  the  proposed  reference,  on  the  ground  that  all  impor- 
tant propositions  ought  to  be  referred  in  the  first  instance 
to  the  committee  of  the  whole,  and  his  view,  rather  than 
the  newer  one,  prevailed.20 

Again  in  1802  Lowndes  stated  that  the  principle  of 
the  action  to  be  taken  with  reference  to  the  French 
Spoliation  Claims  ought  not  to  be  left  to  a  committee. 

20  Annals,  4  Cong.  1,  245-247,  249,  January  15,  1796. 


STANDING  COMMITTEE  SYSTEM          221 

"That  must  be  decided  in  the  House.  It  was  the  duty 
of  the  committee  barely  to  make  arrangements  to  pro- 
tect the  House  from  imposition  on  the  score  of  facts."21 
This  theory  that  standing  committees  must  have  noth- 
ing to  do  with  general  principles  was  again  emphasized 
in  1806.  When  the  president's  message  was  taken  up 
in  the  early  part  of  the  session,  Nicholson  submitted  a 
resolution  to  refer  that  part  of  it  which  dealt  with  the 
attitude  of  belligerent  men-of-war  toward  the  United 
States  to  the  committee  of  ways  and  means,  and  the  sub- 
ject was  accordingly  disposed  of  in  that  way.22  Some 
weeks  later  Smilie  said  that  he  could  not  understand 
why  such  a  reference  had  ever  been  made.  He 
thought  "it  furnished  the  first  instance  of  a  great 
national  principle  being  referred  to  any  standing  or 
select  committee  of  the  House.  It  had  always  been  usual 
to  refer  such  principles  for  settlement,  in  the  first 
instance,  to  a  Committee  of  the  Whole  on  the  State  of 
the  Union,  to  which  committee  several  memorials  on  the 
same  subject  had  been  ref erred. "  He  accordingly 
moved  that  the  committee  of  ways  and  means  be  dis- 
charged from  further  consideration  of  the  question,  and 
that  it  be  referred  to  the  committee  of  the  whole.  No 
action  was  taken  at  the  time,  but  his  motion  was  brought 
up  again  a  few  days  later,  and  carried.23  Evidently  the 
House  believed  that  the  attempt  to  use  the  committee  of 
ways  and  means  for  the  consideration  of  important  ques- 
tions was  an  unwarranted  interference  with  a  firmly 
established  custom.  An  error  had  been  made  in  the  orig- 
inal reference,  and  the  House  took  pains  to  make  the 
proper  correction.24 

21  Annals,  7  Cong.  1,  1003-1004,  March  15,  1802. 

22  Hid.,  9  Cong.  1,  258,  December  4,  1805. 

23  lUd.,  9  Cong.  1,  376,  409,  410,  412. 

24  For  other  statements  of  this  same  theory,  that  general  principles  were 
to  be  handled  in  committee  of  the  whole,  and  that  details  alone  could  be 


222         DEVELOPMENT  OF  LAWMAKING 

This  evidence  shows  that  the  committees  were  simply 
fingers  of  the  House,  and  nothing  more,  convenient 
organs  for  putting  business  in  shape  for  consideration 
by  the  committee  of  the  whole.  This  view  still  prevailed 
as  late  as  1812.  In  that  year,  while  speaking  of  some 
petitions  concerning  the  repeal  of  the  Embargo,  Calhoun 
said  that  the  objects  of  reference  to  a  committee  were 
two :  to  investigate  some  fact,  and  to  digest  and  arrange 
the  details  of  a  complicated  subject,  "so  that  the  House 
may  more  easily  comprehend  the  whole.  This  body  is 
too  large  for  either  of  these  operations,  and,  therefore, 
a  reference  is  had  to  smaller  ones.'"5 

In  this  connection  it  should  be  noticed  that  far  from 
being  customary  to  refer  every  bill  to  its  appropriate 
standing  committee  immediately  after  its  introduction, 
the  practice  was  absolutely  unknown.  After  due  delib- 
eration the  House  might  order  a  committee  to  draft  a 
bill,  and  it  might  refer  the  bill  back  to  the  same  committee 
for  technical  amendments,  but  bills  might,  and  often  did, 
go  through  without  being  referred  to  any  standing 
committee. 

Subjects,  not  bills,  were  referred  to  committees  in  the 
first  instance.  These  were  introduced  into  Congress  by 
resolution,  by  communication  from  the  president  or  a 
head  of  one  of  the  departments,  or  by  petition.  The 
normal  course  was  to  refer  the  subject  to  some  commit- 
tee, or  to  the  committee  of  the  whole,  for  a  report.  This 
report  when  submitted  would  be  discussed  in  committee 
of  the  whole,  and  then,  after  the  mind  of  the  House  was 
fully  made  up,  a  committee  would  be  appointed  to  draft 
and  bring  in  a  bill  in  accordance  with  the  specific  direc- 
tions of  the  committee  of  the  whole. 

left  to  committees,  see  Annals,  4  Cong.  2,  1736 ;  5  Cong.  2,  693-700 ;  7  Cong. 
1,  477. 

25  Annals,  12  Cong.  1,  1395-1396. 


STANDING  COMMITTEE  SYSTEM          223 

A  good  example  of  procedure  at  the  time  is  to  be  found 
in  the  action  taken  on  Jefferson's  message  of  December, 
1805.  He  outlined  the  difficulties  under  which  American 
shipping  labored,  because  of  aggressive  action  of  Euro- 
pean belligerents.  The  message  itself  was  referred  to 
the  committee  of  the  whole ;  the  section  mentioned  above 
was  then  turned  over  to  a  select  committee.  This  com- 
mittee reported,  and  on  January  23,  the  report  was  taken 
up  in  committee  of  the  whole.  It  appeared  that  the  com- 
mittee had  recommended  the  appropriation  of  a  certain 
sum  for  harbor  defense,  but  the  committee  of  the  whole 
decided  that  the  sum  named  was  wholly  inadequate.  The 
committee  of  the  whole  thereupon  decided  that  it  needed 
more  information  on  the  subject,  so  it  appointed  a  com- 
mittee of  two  to  call  upon  the  president,  for  more  light. 
On  February  28  the  discussion  was  resumed.  Finally,  on 
March  25,  the  House  passed  two  resolutions:  one  to 
appropriate  a  sum  not  to  exceed  $150,000  for  fortifying 
the  harbors,  and  the  other  to  appropriate  not  over 
$250,000  to  build  gunboats.  A  committee  was  then 
appointed  to  draft  a  bill  in  accordance  with  these  reso- 
lutions. On  April  15  the  committee  of  the  whole  began 
its  debate  on  the  bill  to  appropriate  $150,000  for  harbor 
defenses.26 

The  very  leisurely  course  on  this  measure  shows 
clearly  that  the  only  part  played  by  the  committees  was 
to  assist  the  House  in  getting  ready  for  actual  work.  All 
really  important  steps  were  taken,  and  all  decisions 
made,  in  committee  of  the  whole.  The  House  estab- 
lished the  principles,  while  the  committees  worked  out 
the  details,  acting  only  under  specific  orders  in  each 
instance. 

From  the  nature  of  the  case  it  was  impossible  for  the 

26  Kichardson,  Messages,  I,  383-384;  Annals,  9  Cong.  1,  258,  377,  378, 
381,  391-395,  523,  842-846,  1029. 


224         DEVELOPMENT  OF  LAWMAKING 

committee  of  the  whole  to  keep  on  in  that  way.  A  genu- 
ine rush  of  work  would  clog  the  whole  system.  It  is  not 
surprising  then  to  find  evidence  that  the  committee  of  the 
whole  was  gradually  being  relieved  of  some  of  this  detail, 
which  was  in  turn  passed  on  to  standing  committees. 
For  one  thing,  during  and  after  Jefferson's  first  term, 
it  was  customary  to  refer  the  various  parts  of  the  presi- 
dent's message  to  the  appropriate  standing  committees, 
and  to  defer  action  on  those  matters  until  after  the  re- 
ports were  received.  Madison's  annual  message  in  1811 
was  taken  up  in  committee  of  the  whole,  according  to 
custom,  but  before  any  debate  could  take  place  it  was 
split  into  parts  and  distributed  to  various  committees. 
At  this  particular  time  John  Eandolph  of  Eoanoke  urged 
that  the  message  itself  was  important  enough  to  warrant 
full  discussion  in  committee  of  the  whole.  This  prince  of 
separatists  did  not  deny  that  the  course  proposed  was 
regular  enough,  but  he  objected  to  having  the  message 
"dissected,  taken  out  of  the  House  and  put  into  the 
hands  of  committees,"  because  such  action  made  impos- 
sible any  discussion  of  the  message  as  a  whole.  He  was 
overruled,  and  the  message  went  to  the  committees  with- 
out further  debate.27 

This  practice  of  which  Eandolph  complained  would 
inevitably  result  in  the  assumption  of  more  power  by 
the  standing  committees.  They  were  in  fact  rapidly 
ceasing  to  be  mere  subdivisions  of  the  House,  appointed 
to  investigate  and  arrange  matters  of  detail,  and  were 
becoming  bodies  not  of  experts  exactly,  but  of  special- 
ists, each  one  of  which  was  moderately  familiar  with 
various  phases  of  its  particular  subject.  Formal  reports 
of  such  committees  would  tend  to  crystallize  opinion,  and 
the  House  itself  might  very  easily  get  into  the  habit  of 
letting  its  committees  do  all  the  thinking.  Eandolph  felt 

27  Annals,  12  Cong.  1,  334-338. 


STANDING  COMMITTEE  SYSTEM          225 

that  dependence  upon  them  made  it  altogether  too  easy 
for  a  few  influential  members  to  dictate  Congressional 
policy  on  great  national  issues. 

Further  evidence  of  the  steadily  increasing  prestige 
and  importance  of  standing  committees  is  to  be  found 
in  the  granting  of  full  power  to  report  by  bill.  As  long 
as  their  work  was  confined  merely  to  the  investigation 
and  arrangement  of  detail,  naturally  reports  could  not 
be  submitted  in  the  form  of  bills.  Even  the  committee 
of  ways  and  means  could  not  report  a  bill  without  specific 
authorization.28  They  gathered  material,  which  had  to 
be  arranged  in  a  general  way  in  committee  of  the  whole. 
It  was  a  fixed  custom  that  a  committee  must  not  report 
a  bill  until  the  general  principle  thereof  had  been 
decided  upon  in  committee  of  the  whole.29 

A  debate  on  this  very  point  was  brought  on  in  the  fifth 
Congress,  when  one  committee  asked  leave  to  report  by 
bill,  because  its  labors  would  be  greatly  lightened  if  it 
could  put  its  conclusions  in  that  form.  Nicholas 
promptly  asserted  that  it  was  the  custom  of  the  House 
to  have  all  important  business  presented  in  the  form  of 
a  simple  report,  which  would  afford  opportunity  for  dis- 
cussion and  reflection.  Venable  followed,  by  stating  that 
"it  was  wholly  contrary  to  the  practice  of  the  House  to 
go  into  details  before  they  had  settled  the  principle  upon 
which  they  were  about  to  act."  Gallatin  also  argued 
against  granting  the  request  on  the  ground  that  com- 
mittees "never  came  forward  at  the  beginning  of  a  ses- 
sion to  ask  leave  to  report  by  bill. ' '  The  vote  on  grant- 
ing this  request  was  45  to  45,  and  the  Speaker  cast  his 
vote  in  favor  of  it.30  All  this  opposition  was  encountered 
after  part  of  the  president's  message  had  been  referred 

28  Annals,  5  Cong.  2,  697. 

29  ibid.,  4  Cong.  2,  1732-1736. 
so  Hid.,  5  Cong.  2,  693-700. 


226         DEVELOPMENT  OF  LAWMAKING 

to  the  committee,  so  that  some  kind  of  a  report  was 
expected. 

As  late  as  1803  the  House  went  so  far  as  to  refuse  a 
second  reading  to  a  bill  reported  by  the  committee  of 
commerce  and  manufactures,  for  the  sole  reason  that  a 
report  in  that  form  had  not  been  authorized.  After 
some  discussion  the  committee  was  ordered  to  withdraw 
its  report.31  Up  to  1815  special  permission  was  always 
required  before  a  committee  could  present  its  report  in 
the  form  of  a  bill.32  In  1815  and  thereafter  blanket  per- 
mission to  report  by  bill  or  otherwise  was  given  to  all 
standing  committees,  and  to  all  committees  on  the  presi- 
dent 's  message.33  This  in  itself  raised  the  committees  to 
a  position  of  commanding  importance  in  the  House. 

By  1819  such  marked  progress  in  the  acquisition  of 
power  had  been  made  that  the  committee  of  ways  and 
means  could  venture  to  report  a  general  appropriation 
bill  with  the  blanks  filled.  For  years  it  had  been  cus- 
tomary for  the  committee  to  make  its  report,  naming 
the  various  objects  for  which  appropriations  would  be 
needed,  but  without  stating  the  specific  amounts.  These 
blanks  were  invariably  filled  in  after  discussion  in  com- 
mittee of  the  whole.  On  this  occasion  Johnson  of  Vir- 
ginia wanted  to  know  what  authorization  there  was  for 
such  an  innovation.  He  thought  this  new  plan  extremely 
dangerous ;  the  blanks  ought  to  be  filled  in  by  no  less  an 
authority  than  the  committee  of  the  whole.  Lowndes, 
the  chairman  who  reported  the  bill,  said  in  reply  that 
the  estimates  had  been  supplied  by  the  various  depart- 
ments. The  committee  of  ways  and  means  had  looked 
them  over,  and  made  a  few  changes  that  seemed  desir- 
able. Any  member,  he  said,  might  take  exception  to  any 
or  all  of  the  items  if  he  thought  they  were  uncalled  for 

si  Annals,  7  Cong.  2,  313-314. 

32  ma.,  13  Cong.  2,  788-789. 

33  Ibid.,  14  Cong.  1,  377. 


STANDING  COMMITTEE  SYSTEM          227 

or  extravagant.34  This  complaint  shows  that  important 
duties  were  being  transferred  from  the  committee  of  the 
whole  to  standing  committees. 

By  1816  it  is  evident  that  standing  committees  had 
become  important  enough,  if  not  actually  to  determine 
the  policy  of  the  House,  at  least  greatly  to  influence  its 
decisions.  Speaking  on  his  motion  to  repeal  the  direct 
tax,  Hardin  of  Kentucky  said  he  approached  the  subject 
with  considerable  reluctance.  To  his  great  regret,  he 
observed  in  the  House  "an  unconquerable  indisposition 
to  alter,  change,  or  modify  anything  reported  by  any 
one  of  the  Standing  Committees  of  the  House. ' m  Three 
weeks  later,  in  discussing  a  bill  reported  by  the  com- 
mittee on  military  affairs,  designed  to  provide  for  vet- 
erans of  tho  War  of  1812,  Taul  objected  to  the  provision 
which  would  reward  the  officers  with  gifts  of  land.  And 
yet,  he  said: 

' '  I  confess  that  I  distrust  my  own  judgment  when  it  is  differ- 
ent from  that  of  any  of  the  standing  committees  of  the  House. 
The  members  composing  those  committees  are  selected  for  their 
capacity  and  particular  knowledge  of  the  business  to  be  referred 
to  them.  Those  selections  have  been  judiciously  made.  The 
standing  committees  have  a  double  responsibility  on  them. 
Hence  it  is  presumed  that  every  measure,  before  it  is  reported 
to  the  House,  undergoes  a  very  nice  scrutiny.  Those  committees 
have  deservedly  great  weight  in  the  investigation  and  decision 
of  such  questions  as  may  have  come  before  and  been  decided  on 
by  them."36 

If  more  evidence  were  needed  that  the  standing  com- 
mittees had  taken  over  the  management  of  all  important 
business,  it  might  be  found  in  the  following  indignant 
protest.  During  the  debate  on  a  resolution  to  repeal  the 

s*  Annals,  15  Cong.  2,  468-470. 
SB  Ibid.,  14  Cong.  1,  747,  January  24,  1816. 
id.,  14  Cong.  1,  989,  February  15,  1816. 


228         DEVELOPMENT  OF  LAWMAKINO 

internal  revenue  act,  Johnson  spoke  vigorously  against 
the  tendency  to  delegate  legislation  to  standing  com- 
mittees. 

"Mr.  Speaker/'  he  said,  "I  am  extremely  sorry  that  the 
resolution  on  your  table,  and  those  by  whom  it  is  supported, 
should  have  experienced  such  unmerited  treatment.  How  long, 
sir,  has  it  been  settled,  that  the  rights  and  the  interests  of  the 
American  people  shall  be  exclusively  confided  to  the  few  mem- 
bers of  this  House  who  compose  its  standing  committees:  or, 
more  peculiarly,  to  the  still  smaller  number  appointed  to  pre- 
side over  these  committees?  Is  it  presumptuous,  or  criminal,  in 
any  other  member  of  this  body,  to  submit  a  proposition,  which 
he  believes  calculated  to  promote  the  interest,  the  prosperity,  and 
the  happiness  of  the  nation?  Are  the  laws  imposing  taxes  to 
remain  fixed  and  unalterable,  except  by  the  will  and  pleasure 
of  the  Chairman  of  the  Committee  of  Ways  and  Means,  or  by 
the  will  and  pleasure  of  the  chairman  of  some  other  important 
standing  committee?  Shall  no  other  member  dare  to  propose 
the  repeal  of  any  revenue  law,  lest  he  be  denounced  as  a  miser- 
able time-serving  trimmer,  and  hunter  after  popularity?"37 

Certainly  a  marked  change  had  taken  place  in  the  rela- 
tionship between  the  House  and  its  standing  committees 
since  1803,  when  a  bill  was  refused  a  second  reading 
because  the  committee  of  commerce  and  manufactures 
had  not  been  authorized  to  submit  its  report  in  that  form. 
John  Randolph  must  have  indulged  in  some  bitter  re- 
flections when  he  saw  committee  reports  carrying  so 
much  weight  that  ordinary  members  hesitated  to  make 
counter  proposals. 

If  this  development  can  be  attributed  to  the  efforts  of 
any  one  man,  Henry  Clay  may  be  held  responsible,  or 
given  the  credit  for  it.  His  contributions  to  legislative 
procedure  were  all  in  the  direction  of  a  more  effective 

37  Annals,  14  Cong.  2,  963,  February  17,  1817. 


STANDING  COMMITTEE  SYSTEM          229 

organization,  the  result  of  which  was  to  speed  up  opera- 
tions in  the  House.  Just  as  his  restrictions  on  useless 
debate  relieved  the  pressure  in  one  direction,  so  this 
transfer  of  duties  and  responsibilities  from  the  commit- 
tee of  the  whole  to  standing  committees,  and  the  division 
of  labor  among  them,  lightened  it  in  another.  The  prac- 
tice of  doing  everything  of  importance  in  the  committee 
of  the  whole  may  have  been  democratic,  but  there  was 
always  the  danger  of  aimless  drifting.  The  records  of 
the  eleventh  Congress  show  what  actually  did  happen. 
The  old  system  was  literally  wrecked  by  a  combination 
of  inefficient  leadership  and  cumbersome  procedure.  Al- 
though it  could  not  guarantee  the  House  against  a  recur- 
rence of  the  first  of  these  evils,  Clay's  work  did  tend 
to  prevent  another  such  unfortunate  combination  of  the 
two. 

Among  the  defects  inherent  in  the  committee  sys- 
tem there  was  one  in  particular,  apparently  unavoidable, 
which  might  at  any  time  occasion  troublesome  confusion. 
It  was  impossible  to  delimit  the  fields  of  committee  juris- 
diction so  precisely  that  there  would  be  no  overlapping. 
As  a  result  the  House  would  sometimes  lose  itself  in  a 
fruitless  debate  over  the  proper  reference  of  a  certain 
subject,  or  worse  still,  two  committees  might  each  con- 
sider the  other  responsible  for  attending  to  a  measure, 
and  consequently  neither  would  act. 

Even  in  the  case  of  the  standing  committee  of  elections, 
where  there  was  apparently  no  room  for  doubt,  some 
members  could  not  be  made  to  understand  what  kind  of 
business  properly  lay  within  its  field.  In  the  second 
Congress,  when  a  petition  alleging  certain  irregularities 
in  Wayne's  election  came  up  for  discussion,  Baldwin 
moved  to  refer  it  to  the  standing  committee  of  elections. 
It  was  immediately  objected  that  the  question  "did  not 
come  within  their  cognizance."  The  petition  was  there- 


230         DEVELOPMENT  OF  LAWMAKING 

upon  laid  upon  the  table  for  ten  days,  when  it  was  re- 
ferred to  a  select  committee.88 

In  1796,  when  the  House  was  discussing  Smith's  reso- 
lution, the  object  of  which  was  to  exclude  foreign  ship- 
ping from  American  carrying  trade,  members  found  it 
hard  to  agree  whether  to  refer  it  to  the  committee  of 
commerce  and  manufactures,  the  committee  of  the  whole, 
or  to  a  select  committee.39 

In  dealing  with  the  president's  speech  or  message,  the 
House  was  often  inconsistent  in  referring  its  various 
parts  to  committees.  For  example,  in  1797,  one  section 
which  clearly  belonged  to  the  committee  of  commerce 
and  manufactures  was  referred  to  a  select  committee, 
and  another  part  regarding  finance  went  to  a  select  com- 
mittee instead  of  the  committee  of  ways  and  means.40 
In  1798  one  section  of  Adams'  speech  concerning  regu- 
lations to  prevent  the  introduction  of  contagious  dis- 
eases was  referred  to  the  committee  of  commerce  and 
manufactures,  after  the  failure  of  an  attempt  to  give  it 
to  a  select  committee.  Another  section  which  dealt  with 
certain  aspects  of  the  collection  of  import  duties  was 
referred  to  the  committee  of  commerce  and  manufac- 
tures, instead  of  the  committee  of  ways  and  means.41 

The  following  instance  is  perhaps  not  of  the  utmost 
importance.  In  1822  one  James  Bennett  petitioned  Con- 
gress to  pass  a  special  act  giving  him  and  his  heirs  for 
forty  years  "the  right  of  steering  flying  machines 
through  that  portion  of  earth's  atmosphere  which 
presses  on  the  United  States."  The  gentleman  in  ques- 
tion had  invented  a  flying  machine  "by  which  a  man  can 

ss  Annals,  2  Cong.  1,  175,  210. 

89J6td.,  4  Cong.  1,  245-249.  For  a  similar  example  of  confusion,  see 
ibid.,  4  Cong.  2,  1737-1746. 

*o  Hid.,  5  Cong.  2,  653-655. 

*i  Ibid.,  5  Cong.  3,  2443.  For  other  examples,  see  ibid.,  2490 ;  9  Cong.  1, 
333,  342-343;  15  Cong.  2,  367-368. 


STANDING  COMMITTEE  SYSTEM          231 

fly  through  the  air — can  soar  to  any  height — steer  in  any 
direction — can  start  from  any  place.  .  .  .  "  Milnor 
moved  to  refer  the  petition  to  the  committee  on  the 
judiciary.  Sergeant,  the  chairman,  objected,  on  the 
ground  that  the  "committee  did  not  undertake  to  soar 
into  regions  so  high.  Their  duties  were  nearer  the 
earth. "  Walworth  then  moved  to  refer  it  to  the  com- 
mittee on  roads  and  canals.  The  House  negatived  that 
proposal,  and  someone  suggested  the  judiciary  again. 
Sergeant  rose  to  protest,  for  the  reason  "that  it  was 
above  their  reach, "  and  also  "that  they  had  so  much 
business  before  them  of  a  terrestrial  character,  that  they 
could  not  devote  their  time  to  philosophical  and  aerial 
investigation. "  The  petition  was  finally  laid  on  the 
table.42 

Perhaps  the  best  illustration  of  this  difficulty  is  to  be 
found  in  the  operations  of  the  committees  of  ways  and 
means  and  of  commerce  and  manufactures.  The  funda- 
mentally important  subject  of  the  tariff  lay  clearly 
enough  within  the  fields  of  both  committees,  so  it  is  not 
surprising  that  the  House  was  puzzled  when  it  had  to 
refer  matters  to  them.  One  committee  could  not  frame 
a  protective  tariff  bill  without  making  a  rent  in  the  whole 
fabric  of  finance,  while  the  other  would  naturally  let  the 
needs  of  the  Treasury  take  precedence  over  the  demands 
of  manufacturers.  At  first,  before  committees  were 
given  free  rein  in  framing  bills,  the  only  problem  was 
that  of  reference.  The  first  brush  between  the  adher- 
ents of  the  two  committees  came  in  1801,  when  Smith 
moved  that  the  committee  of  commerce  and  manufactures 
be  directed  to  inquire  whether  any  changes  might  be  made 
in  the  tariff  laws.  Griswold  objected  at  once,  because 
the  subject  dealt  with  revenue,  and  he  moved  to  refer  the 
matter  to  the  committee  of  ways  and  means.  Smith 

42  Annals,  17  Cong.  1,  1361. 


232         DEVELOPMENT  OF  LAWMAKING 

insisted  that  the  subject  ought  to  be  discussed  by  "  com- 
mercial men,  of  whom  alone  the  Committee  of  Commerce 
and  Manufactures  was  composed."  By  taking  advan- 
tage of  their  expert  advice,  the  House  might  learn 
whether  the  duties  should  be  increased  or  diminished. 
Griswold  reiterated  his  argument  that  the  motion  con- 
templated a  revision  of  the  revenue,  and  therefore  be- 
longed to  the  ways  and  means,  "for  which  purpose  alone 
that  committee  was  formed."  Speaker  Macon  evaded 
the  very  pretty  problem  thus  presented  to  him,  and  ruled 
that  either  reference  was  "perfectly  in  order."  Smith's 
motion  was  finally  carried.*8 

A  similar  difficulty  was  encountered  in  referring  peti- 
tions asking  for  changes  in  the  revenue,  or  urging  fur- 
ther protection  for  manufactures.  In  the  fourteenth 
Congress,  petitions  on  such  subjects  were  referred  to 
both  committees,  apparently  without  any  attempt  at  con- 
sistency. If  any  general  principle  is  discernible,  it 
would  appear  that  petitions  involving  questions  prima- 
rily of  revenue,  and  secondarily  of  protection,  were  re- 
ferred to  the  committee  of  ways  and  means.  Others  went 
to  the  committee  of  commerce  and  manufactures.  It  is 
difficult  however  to  draw  any  hard  and  fast  line.44 

After  the  committees  were  given  more  freedom  in 
reporting  bills,  this  conflicting  jurisdiction  at  times 

43  Annals,  7  Cong.  1,  317-318. 

**Ibid.,  14  Cong.  1,  the  following  petitions  were  referred  to  the  com- 
mittee of  commerce  and  manufactures:  from  makers  of  cotton  cloth,  urging 
a  prohibitive  duty  on  coarse  cotton  goods,  p.  382;  from  manufacturers  in 
Massachusetts,  asking  for  legislation  to  encourage  cotton  manufacturing 
in  the  United  States,  p.  392;  from  woolen  manufacturers  in  Massachusetts 
and  cotton  manufacturers  in  New  Jersey,  for  the  same  thing,  pp.  392,  395; 
several  asking  for  protection  on  white  lead,  cotton,  etc.,  pp.  472-473. 

The  following  went  to  ways  and  means:  from  sugar  planters  in 
Louisiana,  asking  that  the  war  duties  on  foreign  sugar  be  made  permanent; 
one  asking  for  a  repeal  of  the  tax  on  manufactured  tobacco,  and  another 
asking  for  the  repeal  of  the  direct  tax  on  salt,  pp.  458,  472-473,  678. 


STANDING  COMMITTEE  SYSTEM          233 

threatened  to  become  serious.  There  was  the  possibility 
that  both  committees  might  undertake  the  same  work, 
or  that  each  would  try  to  hold  the  other  responsible,  so 
that  there  would  be  serious  friction  on  the  one  hand,  or 
a  total  neglect  of  important  business  on  the  other. 
Under  such  conditions  it  would  have  been  the  natural 
thing  for  the  two  committees  concerned  to  get  together 
outside  of  Congress,  smooth  over  their  differences,  and 
agree  on  some  common  line  of  action.  The  curious 
thing  is  nevertheless  that  in  some  cases  they  almost 
ignored  each  other's  existence.  On  April  24,  1820, 
Smith,  chairman  of  the  committee  of  ways  and  means, 
submitted  his  report,  in  which  he  gave  a  general  survey 
of  the  financial  situation.  He  announced  a  probable 
deficit  for  the  ensuing  year,  urged  Congress  to  econo- 
mize, and  laid  before  the  House  a  bill  providing  for  a 
loan.  He  made  no  reference  to  the  tariff,  and  did  not 
even  hint  that  any  changes  might  improve  the  condi- 
tions which  he  described.45 

One  week  later,  Baldwin,  chairman  of  the  committee 
of  manufactures,  reported  a  new  tariff  bill.  In  introduc- 
ing it,  he  referred  to  the  embarrassment  experienced  by 
himself  and  his  fellow  committeemen  in  attempting  to 
deal  with  a  subject  which  lay  partly  in  the  field  of  another 
committee.  He  had  planned  at  first,  he  said,  to  report  a 
bill  dealing  with  manufactures  alone,  but  the  Treasury 
was  empty,  and  the  committee  of  ways  and  means  had 
declined  to  recommend  any  changes  in  the  revenue  sys- 
tem. Consequently  he  assumed  full  responsibility,  and 
tried  to  work  out  a  plan  that  would  protect  manufac- 
turers and  replenish  the  Treasury  at  the  same  time.  He 
realized  that  in  recommending  a  general  revision  of  the 
tariff,  he  might  encroach  on  fields  of  other  committees, 

«  Annals,  16  Cong.  1,  1837-1845. 


234         DEVELOPMENT  OF  LAWMAKINO 

but  if  they  neglected  their  duties,  they  could  hardly 
blame  him  for  bringing  forward  badly  needed  bills.46 

During  the  years  from  1801  to  1820  more  work  con- 
nected with  the  tariff  was  done  by  the  committee  of  manu- 
factures than  by  the  committee  of  ways  and  means.47  In 
1821  Monroe 's  recommendations  on  the  subject  of  pro- 
tection were  referred  to  the  committee  of  manufactures, 
in  accordance  with  established  custom.  In  dealing  with 
this  subject,  without  taking  the  trouble  to  find  out  what 
the  regular  practice  was,  Professor  Burgess  jumped  at 
the  conclusion  that  this  reference  was  a  new  departure. 
His  statement,  incorrect  both  in  fact  and  in  inference, 
runs  as  follows:  "Heretofore  this  subject  had  been  re- 
ferred to  the  committee  of  Ways  and  Means,  the  regular 
revenue-raising  committee.  Its  reference  now  to  the 
committee  on  Manufactures  is  good  evidence  that  the 
House  of  Representatives  regarded  a  protective  tariff 
as  a  subject  which  Congress  might  deal  with  independ- 
ently, and  without  any  necessary  connection  with  the 
subject  of  the  revenue.  "48  This  argument  is  worthless, 
for  the  simple  reason  that  Congress  did  not  depart  from 
precedent  in  this  instance. 

A  curious  debate  over  the  tariff  of  1824  brings  out 
some  of  the  consequences  of  this  conflicting  jurisdiction. 
After  the  chairman  of  the  committee  of  manufactures 
had  reported  the  new  tariff  bill,  Owen  immediately  asked 
that  the  committee  of  ways  and  means  be  directed  to 
examine  and  report  its  probable  bearing  on  revenue, 
particularly  as  to  whether  the  proposed  measures  would 
increase  or  decrease  the  governmental  income.  He  ad- 
mitted that  there  was  ground  for  criticism  in  calling 
upon  that  committee,  because  if  a  deficiency  should  arise 

4«  Annals,  16  Cong.  1,  1916-1918. 

*7  For  two  other  examples,  see  Annals,  8  Cong.  1,  949 ;  11  Cong.  1, 
363-366. 

48  Burgess,  The  Middle  Period,  p.  110. 


STANDING  COMMITTEE  SYSTEM          235 

from  the  act  of  one  committee,  it,  and  not  another,  should 
be  called  upon  to  make  good  the  loss.  "From  this  opin- 
ion, should  it  be  entertained,"  he  said,  "I  must  dissent; 
over  public  revenue  and  public  expenditure,  the  Com- 
mittee of  Ways  and  Means  have  exclusive  jurisdiction; 
from  that  committee,  alone,  then,  can  any  information 
upon  these  points  come  officially,  and  in  this  shape  we 
ought  to  have  it."  McLane  in  reply  said  that  he  did 
not  object  to  the  call  for  information,  but  he  did  dis- 
approve of  the  method  proposed.  Recourse  should  be 
had  to  the  chairman  of  the  committee  who  reported  the 
bill,  as  he  had  all  the  facts  at  hand,  and  he  must  have 
figured  out  the  probable  effect  of  the  bill.  If  the  ways 
and  means  were  called  on,  they  would  simply  go  to  the 
committee  of  manufactures  for  information.  The  bill 
in  question  was  not  drawn  to  raise  revenue,  but  to  pro- 
tect manufactures,  hence  it  "appertained  wholly  to  the 
other  committee." 

Trimble  said  that  if  the  members  really  wanted  an 
opinion  of  the  probable  effects  of  the  bill,  they  ought  to 
go  to  the  Secretary  of  the  Treasury.  He  was  at  the  head 
of  the  financial  system,  and  would  be  able  to  supply  all 
desired  information.  Ingham  agreed  with  Trimble.  He 
said  such  information  always  came  from  the  secretary, 
and  if  the  House  should  apply  to  the  committee  of  ways 
and  means,  it  would  have  to  go  to  the  Treasury  for  the 
facts.  Floyd  however  objected  to  calling  on  the  secre- 
tary for  information.  He  thought  it  was  inconsistent 
with  the  dignity  of  the  House  to  go  for  information  con- 
cerning its  duties  to  one  of  the  president's  secretaries. 
After  forty-two  pages  of  such  discussion,  the  House 
finally  voted,  ninety-six  to  ninety-two,  to  table  Owen's 
resolution.49  With  two  different  committees  and  the 

49  Annals,  18  Cong.  1,  1587-1629,  especially  1586,  1587,  1589,  1614,  1615, 
1629. 


236         DEVELOPMENT  OF  LAWMAKING 

Secretary  of  the  Treasury  all  trying  to  take  a  hand  in 
directing  the  revenue  system,  it  is  not  surprising  that 
the  administration  of  American  finance  has  be.en  char- 
acterized by  unbusinesslike  confusion,  and  worse  yet  by 
careless  extravagance. 

By  1825  the  main  outlines  of  the  committee  system 
were  clearly  drawn.  The  House  was  divided  into  small 
groups,  each  of  which  was  held  responsible  for  the  trans- 
action of  the  greater  part  of  all  work  relating  to  some 
one  particular  subject.  Even  at  that  time  the  House 
was  inclined  to  pass  with  little  scrutiny  bills  reported 
by  important  committees.  Subsequent  development  has 
consisted  chiefly  in  the  working  out  of  details  of  the  sys- 
tem, rather  than  in  the  establishment  of  any  new  prin- 
ciples. The  important  part  of  legislation  was  done  in 
committee  rooms  rather  than  in  Congress,  and  as  time 
went  on  it  became  increasingly  difficult  to  bring  any  busi- 
ness before  the  House  until  it  had  been  passed  upon  by 
the  appropriate  committee. 


CHAPTER  XIII 
COMMITTEES,  CABINET,  AND  PARTY 

From  one  point  of  view,  the  standing  committees  were 
specialized  agents  of  the  House ;  from  another,  they  were 
avenues  of  communication  between  the  House  and  the 
cabinet.  In  any  discussion  of  American  federal  legis- 
lative methods,  it  is  necessary  to  keep  constantly  in 
mind  the  fact  that  the  different  branches  of  the  govern- 
ment are  separated  by  the  Constitution.  While  it  pre- 
vents the  possibility  of  any  serious  encroachment  of  the 
executive  upon  the  legislature,  this  barrier  has  made 
necessary  the  evolution  of  some  means  whereby  har- 
monious and  concerted  action  may  be  secured.  The 
caucus  had  answered  the  purpose  well  enough  for  a  time, 
but  it  was  an  undifferentiated  body,  not  well  adapted  to 
the  changed  conditions  after  1812.  The  constant  pres- 
sure of  increasing  business,  along  with  the  steadily  grow- 
ing prestige  of  the  House  itself,  demanded  the  use  of 
other  methods,  and  the  standing  committee  system 
proved  to  be  an  excellent  medium  of  intercommunica- 
tion. There  was  a  standing  committee  to  correspond  to 
each  one  of  the  important  executive  departments :  Treas- 
ury, State,  War,  Navy,  Justice,  and  the  Post  Office.  The 
system  was  flexible  enough  to  adjust  itself  automatically 
to  any  shifting  of  leadership.  Whether  the  master 
minds  were  in  the  executive  or  in  the  legislature,  they 
could  always  impress  their  views  on  the  policy  of  the 
government  through  the  standing  committees,  because 
the  current  could  flow  in  either  direction. 

In  1795,  when,  through  Gallatin's  efforts,  the  commit- 


238         DEVELOPMENT  OF  LAWMAKING 

tee  of  ways  and  means  was  brought  into  existence,  this 
idea  of  cooperation  was  not  uppermost  in  his  mind.  In 
fact,  if  it  was  not  exactly  a  substitute  for  the  secretary, 
that  committee  was  designed  to  be  a  check  upon  him, 
rather  than  an  agent  for  coordinating  the  financial 
operations  of  the  House  and  the  Treasury.  Such  a  con- 
dition of  separatism  could  not  endure  very  long.  The 
Secretary  of  the  Treasury  and  the  committee  of  ways  and 
means  were  too  closely  bound  together  by  their  common 
interests,  and  even  in  1796  there  is  evidence  that  the  two 
were  beginning  to  work  together.1  By  1797,  according  to 
Fisher  Ames,  the  committee  had  ceased  to  act  independ- 
ently, and  was  relying  implicitly  upon  the  secretary.2 

From  the  nature  of  the  case  there  would  be  few  indi- 
cations of  intimacy  between  committees  and  depart- 
ments until  the  committees  themselves  became  important 
enough  to  warrant  attention,  in  other  words,  until  about 
the  time  of  Clay's  speakership.  There  is,  however,  a 
little  evidence  of  this  cooperation  before  that  time.  In 
1806  the  chairman  of  the  committee,  appointed  to  con- 
sider that  part  of  Jefferson's  message  dealing  with  har- 
bor defense,  reported  that  the  committee  had  conferred 
with  the  Secretary  of  War  on  the  subject,  and  that  the 
secretary  had  furnished  the  committee  with  a  general 
survey  of  the  condition  of  the  coast  defenses,  together 
with  an  estimate  of  the  probable  cost  of  needed  repairs.8 
This  statement  elicited  no  particular  comment,  so  such 
cooperation  must  have  been  taken  as  a  matter  of  course. 

Gallatin  had  always  been  ready  to  give  the  House 
assistance  at  any  time  and  in  any  way.  After  Madison's 
election  he  was  temporarily  excluded  from  active  leader- 
ship, but  by  1812  he  was  again  working  in  concert  with 
the  standing  committees,  particularly  with  the  committee 

1  Annals,  4  Cong.  1,  379-380,  917. 

2  Hamilton,  Worlcs,  VI,  202. 
s  Annals,  9  Cong.  1,  380. 


COMMITTEES,  CABINET,  AND  PARTY     239 

of  ways  and  means.  The  relationship  between  them  was 
close  enough  to  call  forth  a  complaint  from  Calhoun. 
With  reference  to  a  certain  report  submitted  by  the  com- 
mittee he  remarked:  "What,  sir,  constitutes  a  feature 
in  the  report  still  more  extraordinary  and  objectionable, 
is  the  apparent  understanding  between  the  Committee 
and  the  Treasury  Department.  They  coyly  refuse  to 
recommend  any  positive  act  of  legislation,  while  they 
indirectly  intimate  what  they  wish  and  expect  the  Sec- 
retary of  the  Treasury  to  do."4  Shortly  afterward,  in 
referring  to  shipping  licenses,  Grosvenor  said  that  the 
bill  under  discussion  was  a  "Treasury  machine,  invented 
by  the  able  Secretary  of  that  Department.  .  .  .  Sir,  to 
my  eye,  the  hand  of  the  honorable  Secretary  is  apparent 
in  every  part  of  the  machinery."  On  February  9,  Gal- 
latin  wrote  to  the  chairman  of  the  committee  of  ways 
and  means,  so  Grosvenor  said,  and  recommended  a  tax 
of  six  dollars  per  ton  on  foreign  shipping.  On  February 
15,  a  bill  for  that  purpose  was  reported.  "The  honorable 
Secretary  never  speaks  to  this  House  in  vain. ' >5 

As  a  good  Federalist,  Webster  was  inclined  to  follow 
his  party  in  criticising  this  evident  reliance  of  the  com- 
mittee upon  the  secretary.  At  one  time  he  wrote  that  the 
committee  of  ways  and  means  had  decided  to  report  all 
tax  bills  as  they  came  from  the  Treasury,  and  to  leave  all 
discussion  on  the  subject  to  the  House.6  After  Gallatin 
left  office  his  successors  maintained  this  connection,  and 
there  is  throughout  evidence  of  intimacy  between  the 
Treasury  and  the  committee  of  ways  and  means. 

During  the  War  of  1812,  Monroe,  acting  Secretary  of 
War,  was  constantly  consulting  with  the  House  com- 
mittee on  military  affairs.  At  the  very  beginning  the 
committee  called  upon  him,  to  get  information  regarding 

*  Annals,  12  Cong.  2,  315-317. 
5  nid.,  12  Cong.  2,  1139-1140. 
«  Webster,  Letters,  p.  37  (Van  Tyne  ed.). 


240         DEVELOPMENT  OF  LAWMAKING 

the  number  of  troops  to  be  raised.7  In  the  next  session 
Monroe  wrote  that  he  had  received  letters  from  the  mili- 
tary committees  of  both  houses,  with  reference  to  the 
organization  of  the  regular  army,  and  of  the  volunteers, 
in  which  he  was  requested  to  give  advice  as  to  needed 
additions.  Monroe  sent  in  a  long  report,  and  also  sup- 
plied the  committee  with  an  outline  of  the  plan  of  cam- 
paign for  1813.8  To  the  Columbian  Centinel  such  inter- 
course savored  of  tyranny.  "The  truth  is,  Mr.  Secre- 
tary Monroe  has  informed  them  that  the  war  requires 
that  the  Standing  Army  should  be  augmented  to  FIFTY 
THOUSAND  men,"  and  that  the  bounty  for  enlistment 
ought  to  be  increased.  "The  Committee  are  about  to 
register  the  edict.  .  .  .  "9 

Congress  depended  upon  Monroe  to  furnish  the  neces- 
sary bills  for  increasing  the  army.  In  1814  Webster 
wrote  that  the  conscription  bill  was  before  the  House. 
"The  bill  is  drawn  principally  on  Mr.  Monroe's  first 
plan.  Of  course  we  shall  oppose  such  usurpation  all  we 
can."10 

Naturally  the  committee  of  foreign  affairs  maintained 
close  relations  with  the  executive.  It  had  collaborated 
with  the  Secretary  of  War  in  working  out  a  plan  of  de- 
fense in  1811.11  Then  the  bill  for  the  sixty  days  embargo 
that  preceded  the  declaration  of  war  was  prepared  by 
the  committee  of  foreign  relations,  with  the  able  assist- 
ance of  Albert  Gallatin.  The  procedure  in  that  instance 
was  significant.  Madison  sent  in  a  special  message,  rec- 
ommending the  embargo,  and  the  message  was  referred 
to  the  committee  of  foreign  relations.  After  a  brief 
interval,  Porter,  the  chairman,  reported  a  bill,  which  had 

7  Monroe,  Correspondence,  V,  206-207. 
*Ibid.,  227-241. 

9  Col.  Cent.,  December  30,  1812. 

10  Webster,  Private  Correspondence,  I,  245-246. 
nCoZ.  Cent.,  December  7,  21,  1811;  January  4,  1812. 


COMMITTEES,  CABINET,  AND  PARTY     241 

apparently  been  prepared  before  the  message  was  re- 
ceived. Porter  himself  said  that  the  bill  was  ' l  draughted 
according  to  the  wishes  and  directions  of  the  Secretary 
of  the  Treasury. "" 

When  the  House  and  the  cabinet  were  on  terms  of 
political  friendship,  the  committee  of  foreign  relations, 
or  at  least  its  chairman,  was  on  very  intimate  terms  with 
the  Secretary  of  State.  "The  Chairman  of  the  Com- 
mittee of  Foreign  Relations  has  always  been  considered 
as  a  member  in  the  confidence  of  the  Executive, "  wrote 
John  Quincy  Adams,  "and  Mr.  Forsyth  acted  thus  at 
the  last  session.  The  President  has  hitherto  considered 
him  as  perfectly  confidential,  and  directed  me  to  commu- 
nicate freely  to  him  the  documents  concerning  foreign 
affairs,  particularly  those  with  Spain,  which  I  have 
done."13  It  was  customary  for  the  chairman  to  call  upon 
the  Secretary  of  State  at  the  opening  of  a  session,  to  find 
out  whether  or  not  there  would  be  any  measures  regard- 
ing foreign  affairs  which  would  require  legislative  action. 
Then  there  would  follow  a  general  conversation  about 
important  questions  pertaining  to  the  work  of  the  de- 
partment.14 In  some  cases  the  Secretary  of  State  would 
give  the  chairman  of  this  committee  important  state 
papers,  on  the  express  condition  that  they  would  not  be 
laid  before  Congress.  The  two  men  went  over  the  whole 
field  of  foreign  relations  very  thoroughly,  and  the  chair- 
man was  in  the  habit  of  giving  the  secretary  a  resume 
of  his  report  before  he  submitted  it  to  Congress.15 

More  than  that,  the  chairman  of  the  committee  of  for- 
eign  relations  was  in  the  position  practically  of  an  ex 

12 Annals,  12  Cong.  1  (Suppl.  Journal),  1587-1588.  John  Kandolph 
subsequently  spoke  of  it  as :  "  The  embargo,  engendered  from  a  fortuitous 
concourse  between  the  Executive  and  the  Committee  of  Foreign  Rela- 
tions  »  Ibid.,  12  Cong.  1,  1385. 

is  J.  Q.  Adams,  Memoirs,  IV,  65. 

n  Hid.,  IV,  183-184. 
.,  IV,  210. 


242         DEVELOPMENT  OF  LAWMAKING 

officio  member  of  the  cabinet.  Adams  reported  one 
instance  when  Monroe  asked  him  to  notify  the  members 
of  the  cabinet  to  meet  the  next  day  to  discuss  the  Florida 
question.  According  to  the  president,  "it  had  been  here- 
tofore customary  for  the  Committee  of  Foreign  Eela- 
tions  to  act  in  concert  with  the  Executive,  and  to  show 
their  reports  before  making  them.  He  thought  they 
ought  to  do  so  now."  At  the  ensuing  cabinet  meeting 
Holmes,  the  chairman,  was  present,  and  gave  the  cabi- 
net an  outline  of  his  proposed  report.16 

Adams'  numerous  comments  make  it  evident  that  for 
a  part  of  Monroe's  first  term,  the  committee  of  foreign 
relations  was  little  more  than  the  legislative  agent  of 
the  department  of  State.  Certainly  the  relationship  was 
so  intimate  that  there  was  little  friction.  Such  a  con- 
nection naturally  suffered  when  Clay  began  his  assaults 
upon  the  administration.  In  1819  Adams  wished  to  have 
a  commission  appointed  to  adjust  the  Florida  boundary. 
He  made  known  his  desire  to  Holmes,  chairman  of  this 
committee,  and  Holmes  in  turn  laid  the  proposal  before 
the  House.  He  moved  to  amend  the  bill  which  provided 
for  the  occupation  of  Florida  by  adding  clauses  author- 
izing the  appointment  of  such  a  commission,  and  the 
appropriation  of  the  amount  needed  to  defray  the  ex- 
penses of  the  members.  Holmes  expressly  stated  that 
he  proposed  the  amendment  because  it  had  been  asked 
for  by  the  Secretary  of  State,  who  considered  it  desir- 
able, and  not  because  the  committee  thought  it  was  essen- 
tial. In  reply  to  a  query  by  Clay,  Holmes  admitted  that 
Adams  had  made  suggestions  with  reference  to  the 
amount  of  the  appropriation.  Much  to  Adams '  displeas- 
ure, the  amendment  was  not  carried.17 

His  defeat  on  this  measure  marked  the  end  of  his  influ- 

16  J.  Q.  Adams,  Memoirs,  IV,  212-214. 

IT  Annals,  15  Cong.  2,  1428-1430;  J.  Q.  Adams,  Memoirs,  IV,  281. 


COMMITTEES,  CABINET,  AND  PARTY     243 

ence  with  the  committee  of  foreign  relations.  In  Decem- 
ber, 1819,  John  Randolph  was  placed  on  the  committee, 
and  henceforth  confidential  intercourse  between  secre- 
tary and  committee  practically  ceased.  Communica- 
tions of  importance  could  no  longer  be  laid  before  the 
committee  in  secret,  because  Randolph  would  be  sure  to 
report  the  whole  proceeding  to  the  House.18  When  Mon- 
roe wished  to  furnish  Lowndes,  the  new  chairman,  with 
some  papers  which  could  not  be  made  public,  Lowndes 
preferred  not  to  see  them,  because  he  could  not  make  any 
allusions  to  his  special  information  without  giving  rise 
to  harmful  suspicions.19  On  one  subsequent  occasion 
Adams  made  the  blunder  of  laying  before  the  committee 
the  documents  concerning  his  negotiations  with  France. 
"It  had  always  been  considered  as  a  practical  rule,"  he 
wrote,  "that  the  Committee  of  Foreign  Relations  should 
be  the  confidential  medium  of  communication  between  the 
Administration  and  Congress.  The  Speaker  had  now 
appointed  a  committee  entirely  new,  of  members  chiefly 
known  to  be  hostile  to  the  Administration,  with  a  Chair- 
man generally  understood  to  be  at  personal  variance  with 
me.  To  this  committee  all  the  papers  relating  to  a  com- 
plicated and  delicate  pending  negotiation  with  France 
are  confidentially  committed,  and  the  next  day  one  of 
the  members  of  the  committee  offers  a  resolution  calling 
for  them  all."20 

Adams  also  referred  to  relations  between  other  com- 
mittees and  the  cabinet.  "Now,  Crawford,"  he  wrote, 
"is  constantly  boasting  that  he  draws  up  bills  for 
committees,  who  present  them  exactly  as  he  draws 
them."21  At  one  cabinet  meeting  the  draft  of  a  bill  by 
Newton,  chairman  of  the  committee  of  commerce,  was 

is  J.  Q.  Adams,  Memoirs,  IV,  478. 
is  Ibid.,  IV,  505-506. 

20  Ibid.,  V,  474-476. 

21  Ibid.,  IV,  281. 


244         DEVELOPMENT  OF  LAWMAKING 

examined  and  discussed.  Various  amendments  were 
proposed,  and  Crawford  was  asked  to  write  a  new  section 
to  take  the  place  of  the  third  in  Newton 's  bill.22  Again, 
Southard,  the  Secretary  of  the  Navy,  showed  Adams  the 
draft  of  a  bill  which  he  planned  to  have  laid  before  the 
House  by  the  chairman  of  the  committee  on  naval  affairs, 
the  object  of  which  was  to  establish  a  naval  school.23 

Although  this  direct  connection  between  committees 
and  cabinet  was  taken  as  a  matter  of  course,  it  was  not 
considered  proper  for  a  committee  chairman  to  negotiate 
directly  with  the  president.  Adams  said  that  "Dis- 
cussion between  the  President  and  committees  of  either 
House  of  Congress  can  never  be  proper,  and  are  never 
sought  but  by  Chairmen  of  committees  disaffected  to  the 
Executive.  "24 

Before  these  habits  of  cooperation  had  become  regular, 
members  were  accustomed  to  profess  more  or  less 
horror  when  cabinet  officials  made  recommendations 
to  the  House.  As  a  result  of  several  years  of  such 
intercommunication,  through  the  medium  of  caucus  or 
standing  committee,  the  House  not  only  expected  the 
secretaries  to  make  suggestions  regarding  necessary 
legislation,  but  even  looked  with  suspicion  at  important 
measures  which  were  not  so  recommended.  When  the 
bill  for  chartering  a  new  bank  was  brought  forward  in 
1814,  Grosvenor  took  exception  to  the  manner  of  its 
introduction.  He  believed  it  was  unconstitutional  to 
charter  a  bank  except  to  accomplish  national  objects, 
and  to  facilitate  the  handling  of  the  revenue.  "As  to 
those  objects,  however,"  he  said,  "it  was  the  consti- 
tutional duty  of  the  Secretary  of  the  Treasury  to  devise 
the  ways  and  means,  and  if  such  an  institution  were 
necessary  for  the  purposes  of  Government,  it  was  the 

22  J.  Q.  Adams,  Memoirs,  IV,  504,  509. 

23  Hid.,  VII,  90-91;  also  V,  131-132. 

24  Hid.,  VI,  267. 


COMMITTEES,  CABINET,  AND  PARTY     245 

duty  of  that  officer  to  recommend  it.  He  wished  the 
Secretary  to  say  whether  such  a  bank  was  necessary, 
and  not  that  the  subject  should  be  referred  to  a  com- 
mittee of  this  House,  and  they  to  inquire  privately  of 
the  Secretary  as  to  the  expediency  of  the  measure. 
When  the  proposition  came  in  at  the  proper  Constitu- 
tional door,  and  appeared  to  be  necessary  .  .  .  ,"  he 
would  not  object.  "If  such  a  necessity  exists,  he  wished 
the  Government  to  come  forward  and  declare  it,  and 
not  shrink  from  the  responsibility  of  recommending  the 
measure. "25  Oakley  said  that  he  did  not  believe  "it  was 
so  exclusively  the  duty  of  the  Executive  Department  to 
recommend  the  establishment  of  a  National  Bank.  ..." 
Even  though  the  measure  did  not  come  in  at  the  proper 
door,  that  was  no  reason  for  condemning  it.26  Gaston 
agreed  with  Grosvenor,  and  expressed  his  "entire  dis- 
approbation of  the  indirect  introduction  of  Executive 
recommendations  into  the  House,  as  producing  legis- 
lation without  intelligence,  and  action  without  respon- 
sibility. .  .  ."  He  would  not  vote  against  a  measure 
simply  because  the  executive  had  not  recommended  it 
openly,  but  he  would  have  been  better  pleased  "if  the 
measure  had  been  directly  recommended  by  the  Execu- 
tive. .  .  .""  To  ward  off  criticism  of  that  kind,  Dallas, 
the  new  Secretary  of  the  Treasury,  recommended  the 
incorporation  of  a  bank  in  his  next  annual  report.28 
Eeferring  to  the  bill  which  was  introduced  in  accordance 
with  that  suggestion,  Ingersoll  said,  "The  Treasury 
Department,  in  concert,  and  after  long  consideration 
with  the  Committee  of  Ways  and  Means,  assuming  the 
responsibility  of  their  respective  stations,  have  recom- 
mended to  us  the  plan  of  a  bank  which  is  comprehended 

25  Annals,  13  Cong.  2,  1942. 

26  Ibid.,  13  Cong.  2,  1943. 

27  Ibid.,  13  Cong.  2,  1945. 

28  Hid.,  13  Cong.  3,  403. 


' 


246         DEVELOPMENT  OF  LAWMAKING 

in  the  bill  under  discussion.  "29  The  bank  bill  that  was 
finally  passed  was  framed  by  a  select  committee  of  which 
Calhoun  was  chairman,  but  the  committee  merely 
followed  the  plan  laid  before  them  by  Dallas.  When 
the  bill  was  under  discussion  in  Congress,  Calhoun  was 
constantly  in  touch  with  the  Secretary  of  the  Treasury.30 
This  conviction  in  the  House  that  "government  bills " 
ought  to  be  recommended  by  the  proper  executive 
authority  was  emphasized  in  still  another  way.  On  the 
very  day  when  Grosvenor  was  objecting  to  the  method 
of  the  introduction  of  the  bank  bill,  Wilson  submitted 
some  resolutions,  urging  that  the  committee  on  military 
affairs  be  instructed  to  inquire  into  the  expediency  of 
providing  by  law  for  opening  and  improving  military 
roads.  Under  ordinary  conditions,  he  said,  it  might  be 
expected  that  the  War  department  would  be  aware  of 
the  need,  if  it  existed,  and  would  call  the  attention  of 
Congress  to  the  subject.  At  that  time,  however,  the 
Secretary  of  War  was  too  busy  to  attend  to  such  matters. 
But  his  department  would  have  general  oversight  of  the 
work,  and  it  was  proper  to  refer  the  question  to  the 
committee  on  military  affairs,  because  it  was  "more 
conversant  with  the  channels  of  information  to  be 
derived  from  the  military  department,  and  in  the  daily 
practice  of  receiving  it,  which  must  be  supposed  to  afford 
a  facility  in  their  inquiries  which  another  committee 
might  not  so  conveniently  possess."31  Two  years  later, 
when  it  seemed  desirable  to  make  certain  changes  in  the 
\  organization  of  the  War  department,  and  of  the  militia, 
{  Congress  called  upon  the  Secretary  of  War  to  furnish 
the  necessary  bills.  In  compliance  with  that  request  the 
bills  were  laid  before  the  House  early  the  next  session.32 

29  Annals,  13  Cong.  3,  604. 

so  Ibid.,  14  Cong.  1,  494-514,  1229-1233. 

si  Ibid.,  13  Cong.  2,  1935-1936. 

32  ibid.,  14  Cong.  1,  1408-1409;  14  Cong.  2,  270-275. 


COMMITTEES,  CABINET,  AND  PARTY     247 

There  were  some  members  who  thought  that  this 
cooperation  between  the  two  branches  of  the  government 
would  in  time  make  the  House  nothing  but  a  mere 
auxiliary  of  the  executive.  Hardin  complained  that  the 
manner  in  which  legislative  business  was  carried  on 
"destroyed  the  freedom  of  legislation  altogether.  The 
President  signified  his  will  to  the  Heads  of  Depart- 
ments— they  made  their  annual  report  to  the  House, 
recommending  the  adoption  of  certain  measures ;  it  was 
pretty  well  understood  that  what  they  recommended  was 
the  will  of  the  Executive;  the  reports  of  the  Heads  of 
Departments  were  referred  to  the  standing  committees, 
a  majority  of  whom  were  followers  of  the  Executive; 
they  kept  in  secret  conclave  for  a  month  or  two,  until 
the  House  became  all  anxiety,  and  solicitude  was  on  tip- 
toe. Eaoh  day  an  inquiry  would  be  made  when  they 
would  report?  Not  ready  yet,  would  be  the  answer. 
The  members  of  the  committee  looked  grave,  pensive, 
and  melancholy,  as  if  oppressed  with  a  mighty  weight 
of  thought.  At  last  they  would  burst  upon  the  House 
with  their  report ;  and  what  was  it  when  made  ?  A  mere 
echo,  a  mere  response  to  Executive  will,  with  small  and 
immaterial  variations,  intended  for  the  purpose  of 
inducing  the  House  to  believe  that  they  had  matured  the 
subject  well,  when,  perhaps,  they  had  never  thought 
about  it;  pre-determined,  from  the  first,  to  re-echo  back 
in  substance  Presidential  will ;  and  when  the  report  thus 
made  finds  its  way  into  the  House,  it  is  fixed.  Eight  or 
wrong,  it  must  not  be  altered.  Each  member  of  the 
committee  adheres  to  it,  each  hanger-on  supports  it,  and 
all,  as  the  poet  says,  'who  live  and  never  think'  support 
it."33 

The  standing  committee  system  is  often  criticised  on 
the  ground  that  it  tends  to  scatter  the  energies  of  the 

as  Annals,  14  Cong.  1,  747-748,  January  24,  1816. 


248         DEVELOPMENT  OF  LAWMAKING 

House,  and  to  prevent  the  fixing  of  definite  respon- 
sibility. Even  though  this  censure  is  justifiable,  it  is 
difficult  to  conceive  of  any  other  arrangement  which 
would  have  fitted  in  so  well  with  the  peculiar  conditions 
in  the  House  of  Eepresentatives.  Institutions  are  merely 
mechanical  devices  which  come  into  existence  to  meet 
some  peculiar  want,  the  organs  to  perform  certain 
definite  functions.  As  the  federal  government  gradually 
learned  how  to  operate,  the  House  was  compelled  to 
evolve  a  system  which  would  satisfactorily  solve,  not 
one  or  two,  but  three  problems.  It  was  not  enough  that 
the  committees  should  attend  to  routine  work  in  Con- 
gress, and  in  addition  serve  as  avenues  of  communication 
between  cabinet  and  legislature.  It  will  be  recalled  that 
in  order  to  enact  their  measures,  the  Federalists,  and 
after  them  the  Jeffersonians,  were  compelled  to  band 
their  forces  together  in  a  kind  of  extra-Congressional 
organization,  through  which  the  party  could  exert  its 
strength.  Those  in  touch  with  the  government  knew  that 
legislation  was  carried  on,  not  by  Congress  as  such,  but 
by  the  inner  circle  of  majority  leaders.  Now  the  com- 
mittee of  the  whole  had  been  of  necessity  relieved  of 
some  of  its  important  duties,  because  of  the  increasing 
amount  of  work.  If  division  of  labor  was  necessary  in 
Congress,  it  was  equally  desirable  in  the  party.  The 
caucus  was  not  discarded  by  any  means,  but  it  could  be 
left  free  to  deal  with  the  more  general  aspects  of  party 
interests,  because  the  standing  committees  might  safely 
be  charged  with  much  of  the  detail.  Consequently,  these 
committees  became  in  a  way  the  specialized  agents  of 
the  majority,  just  as  they  were  of  the  House,  and  of  the 
executive.  As  a  result,  the  three  indispensable  factors 
in  the  government:  executive,  legislature,  and  political 
party,  were  provided  with  a  number  of  common  deputies, 
by  means  of  which  the  different  forces  at  work  could  be 


COMMITTEES,  CABINET,  AND  PARTY     249 

united  in  a  single  common  channel.  When  executive  and 
legislature  were  actuated  by  a  desire  to  work  together, 
this  system  made  possible  the  proper  correlation  of  these 
three  factors,  the  avoidance  of  a  duplication  of  labor,  and 
the  elimination  of  waste  energy. 

Party  control  of  the  committees  was  assured  through 
the  method  of  appointment.  Almost  from  the  beginning 
the  Speaker  was  empowered  to  select  the  committees,34 
and  by  the  time  standing  committees  had  become  at  all 
important,  the  Speaker  himself  was  chosen  in  party 
caucus.  Just  how  early  this  practice  became  regular  is 
not  known;  probably  very  soon  after  party  lines  were 
drawn.  With  reference  to  the  choice  of  Speaker,  Miss 
Follett  states  ' '  that  although  some  concerted  action  must 
always  have  been  necessary  to  produce  a  majority  result, 
caucuses  as  we  know  them  did  not  appear  until  towards 
the  middle  of  the  century.'735  Inasmuch  as  caucuses 
were  to  all  intents  and  purposes  electing  the  president 
of  the  United  States  long  before  the  middle  of  the  cen- 
tury, and  differed  from  those  as  we  know  them  only 
perhaps  in  being  more  influential,  the  statement  just 
quoted  is  not  particularly  illuminating.  As  a  matter  of 
fact  there  are  occasional  newspaper  references  to  show 
that  the  speakership  did  come  within  the  range  of  caucus 
deliberations  even  in  the  early  days.  "  Among  the 
extraordinaries  of  the  day,"  ran  an  item  in  the  Colum- 
bian Centinel  of  December  7,  1799,  "may  be  ranked  the 
caucussing  of  the  Jacobins  at  Philadelphia,  in  favor  of 
Mr.  Eutledge,  of  South  Carolina,  as  Speaker,  in  oppo- 
se in  the  first  session  of  the  first  Congress,  the  Speaker  appointed  small 
committees,  but  the  House  chose  all  those  of  more  than  three  members  by 
ballot.  Journal  House  of  Beps.,  1  Cong.  1,  6.  In  the  second  session  the 
Speaker  appointed  all  the  committees,  unless  the  House  directed  otherwise; 
Journal,  1  Cong.  2,  140.  In  the  second  Congress  the  Speaker  was  authorized 
to  appoint  committees  until  the  House  should  see  fit  to  make  other  arrange- 
ments. Annals,  2  Cong.  1,  142. 

35  Follett,  Speaker  of  the  House,  p.  40. 


250         DEVELOPMENT  OF  LAWMAKING 

sition  to  Mr.  Sedgwick,  because  the  latter  is  a  northern 
man.  .  .  ."  Again  in  1814,  the  same  paper  mentioned 
the  election  of  Cheves  to  succeed  Clay,  who  had  resigned 
to  go  to  Ghent.  Cheves  was  elected,  in  spite  of  the  fact 
that  his  opponent,  Grundy,  "was  not  only  the  caucus  but 
the  white-house  candidate."36  After  Clay's  attack  on 
the  Monroe  administration,  there  was  apparently  a 
caucus  held  to  consider  a  possible  successor  for  him. 
Monroe  told  Adams  that  several  members  had  come  to 
ask  him  '  i  whether  it  would  be  advisable  to  displace  Clay 
as  Speaker/'  The  President  advised  against  it,  "be- 
cause it  would  be  giving  Mr.  Clay  more  consequence  than 
belongs  to  him,"37  These  references  make  it  fairly 
evident  that  the  Speaker  was  elected  by  a  party  caucus. 
As  early  as  1797,  too,  there  is  evidence  that  party 
considerations  were  becoming  an  important  factor  in  the 
selection  of  committees.38  Then,  in  1802,  John  Ban- 
dolph,  at  that  time  one  of  the  most  conspicuous  of  the 
Eepublican  leaders,  was  chairman  of  so  many  different 
committees  that  he  could  not  attend  to  them  all.39  This 
in  itself  is  an  illuminating  commentary  on  party  prac- 
tices in  those  days.  By  1813  standing  committees  were 
avowedly  made  up  in  the  interests  of  the  dominant  party. 
Webster  wrote  that  in  the  appointments  for  that  session 
"A  Federal  name  is  now  &  then  put  in,  to  save  appear- 
ances."*0 The  next  year  King  complained  that  on  the 
committee  of  ways  and  means  New  England  had  no 
representation,  while  the  middle,  southern,  and  western 
states  were  represented.  * '  It  may  have  been  an  accident, 
or  he  (the  speaker)  may  only  have  followed  the  bad 
example  of  some  bad  predecessor,"  he  said.  Even  on 

36  Col.  Cent.,  January  26,  1814. 

37  J.  Q.  Adams,  Memoirs,  IV,  471. 

as" South  Carolina  Federalists,"  Am.  Hist.  Eev.,  XIV,  786. 

39  Annals,  7  Cong.  1,  478. 

40  Webster,  Letters,  p.  34  (Van  Tyne  ed.). 


COMMITTEES,  CABINET,  AND  PARTY     251 

the  least  important  committees  there  was  a  majority 
against  New  England.41 

In  1820  Adams  charged  that  in  appointing  the  com- 
mittee of  foreign  relations,  Clay  "selected  that  one  with 
a  view  to  prevent  anything 's  being  done  congenial  to  the 
views  of  the  Administration. ' m  John  Randolph's  pres- 
ence on  the  committee  that  year  would  in  itself  prove 
that  Adams  was  telling  the  truth. 

Whether  the  composition  of  committees  was  actually 
decided  in  caucus  or  not  made  little  difference.  The 
Speaker  was  the  caucus  nominee,  and  even  Henry  Clay 
could  not  take  the  risk  of  antagonizing  his  fellow  mem- 
bers in  the  House.  In  1827  it  appears  that  the  appoint- 
ment of  the  standing  committees  was  delayed  in  order 
that  the  caucus  might  have  time  to  decide  on  the 
personnel.4  ~J 

It  was  very  seldom  that  disaffected  members  made  any 
attempt  to  alter  the  method  of  committee  appointment. 
In  1806  John  Randolph's  action  in  holding  back,  or 
refusing  to  make  a  report  for  the  committee  of  ways  and 
means,  led  to  a  movement  in  favor  of  appointment  by 
ballot.  In  offering  a  resolution,  the  aim  of  which  was 
to  take  the  appointing  power  away  from  the  Speaker, 
Sloan  said,  "I  offer  these  resolutions  for  the  purpose 
hereafter  of  keeping  the  business  of  the  House  of  Repre- 
sentatives within  its  own  power,  and  to  prevent  in  future 
the  most  important  business  of  the  nation  from  being 
retarded  by  a  chairman  of  the  Committee  of  Ways  and 
Means,  or  of  any  other  committee,  from  going  to  Balti- 
more or  elsewhere,"  and  staying  six  days,  and  also  to 
"prevent  in  future  the  chairman  of  the  Committee  of 

41  Annals,  13  Cong.  3,  444-445,  449. 

42  J.  Q.  Adams,  Memoirs,  IV,  507. 

«  IMd.,  VII,  373-374,  377:  "It  is  understood  that  the  appointment  of 
the  committees  in  the  House  by  the  new  Speaker  is  to  be  settled  by  the 
leaders  of  the  party." 


252         DEVELOPMENT  OF  LAWMAKING 

Ways  and  Means  from  keeping  for  months  the  estimates 
for  the  appropriations  necessary  for  the  ensuing  year 
in  his  pocket,  or  locked  up  in  his  desk,  whereby  the 
different  appropriation  bills  may  be  kept  back  (as  they 
have  been  this  session)  to  the  great  injury  of  the 
nation.  .  .  .  Resolved,  That  hereafter  all  standing  com- 
mittees of  the  House  of  Representatives  shall  be  ap- 
pointed by  ballot,  and  shall  choose  their  own  chairmen.  "44 
Nothing  was  done  at  the  time,  but  a  vote  was  taken  on 
the  subject  early  the  next  session.  By  an  extremely 
narrow  margin  the  Speaker  was  permitted  to  keep  his 
power  of  appointment.45 

A  similar  attempt  was  made  in  the  tenth  Congress. 
Blount  said  that  in  order  to  relieve  the  Speaker  of  a 
very  unpleasant  duty,  it  would  be  desirable  to  have  the 
committees  named  by  ballot,  so  he  made  a  resolution  to 
that  effect.  He  thought  the  proposed  method  would  be 
"most  satisfactory  to  the  House  and  to  the  Speaker 
also. ' '  Smilie  defended  the  regular  practice.  The  ballot 
method  had  been  resorted  to  occasionally,  he  said,  and 
it  had  proved  to  be  unsatisfactory.  The  Speaker  was 
well  qualified  to  do  the  appointing.  In  naming  com- 
mittees, he  argued,  "it  was  proper  to  select  the  most 
fit  characters  for  each — on  the  Committee  of  Commerce 
and  Manufactures,  for  instance,  there  ought  to  be  placed 
commercial  men ;  on  the  Committee  of  Ways  and  Means, 

44  Annals,  9  Cong.  1,  1114-1115. 

45  Hid.,  9  Cong.  2,  111.     In  his  Life  of  Macon,  pp.  208-209,  Professor 
Dodd  states  that  the  northern  Republicans  feared  Randolph's  reappoint- 
ment  as  chairman  of  the  committee  of  ways  and  means,  and  to  prevent  it 
they  tried  to  take  the  appointing  power  away  from  the   Speaker.     The 
greatest  of  all  northern  Republicans,  however,  Albert  Gallatin,  was  extremely 
anxious  to  have  Randolph  continued  as  chairman  of  the  ways  and  means 
committee.     On  October  30,  1807,  Gallatin  wrote  as  follows  to  his  wife: 
' l  Varnum  has,  much  against  my  wishes,  removed  Randolph  from  the  Ways 
and  Means  and  appointed  Campbell,  of   Tennessee.     It   was  improper  as 
related  to  the  public  business,  and  will  give  me  additional  labor. ' '    Adams, 
Gallatin,  p.  363. 


COMMITTEES,  CABINET,  AND  PARTY     253 

such  as  were  best  acquainted  with  the  subjects  of  finance, 
etc.,  whereas  in  committees  appointed  by  ballot,  it  will 
depend  on  accident  whether  fit  persons  be  appointed  or 
not.  Besides,  in  such  elections  there  is  no  responsibility ; 
the  contrary  is  the  case  when  the  Speaker  selects  the 
members  of  a  committee.  He  is  responsible  for  the 
choice  he  makes,  and  will  therefore  exercise  great  pre- 
caution in  it."46  In  the  eleventh,  and  again  in  the 
thirteenth  Congress,  similar  attempts  were  made,  but 
in  both  cases  they  were  voted  down.47  It  was  evident 
that  clear-headed  party  leaders  did  not  propose  to  trust 
to  luck  in  making  up  the  committees,  nor  did  they  care 
to  let  the  committees  get  beyond  their  control. 

In  view  of  the  increased  importance  of  the  Speaker 
it  would  have  been  natural  for  the  president  to  take  a 
keen  interest  in  the  choice  of  that  official.  There  is, 
however,  little  evidence  to  show  that  he  attempted  to 
dictate  the  selection.  Perhaps  before  Clay's  time  there 
was  little  need  for  attention  to  that  detail.  It  is  signifi- 
cant that  what  evidence  there  is  on  this  point  is  to  be 
found  after  Clay  had  attempted  to  assume  the  direction 
of  both  the  foreign  and  the  domestic  policy  of  the 
government.  In  1821  some  members  of  the  administra- 
tion had  a  few  conferences  with  Taylor,  one  of  the 
candidates  for  the  office.  Taylor  was  ready  to  promise 
to  support  the  executive  in  return  for  whatever  assist- 
ance they  might  give  in  securing  the  election  for  him. 
Adams  was  not  unwilling  to  throw  the .  weight  of  the 
influence  of  the  administration  in  Taylor's  favor,  but 
Monroe  determined  to  let  the  House  solve  its  own  prob- 
lems, and  Adams  promised  to  take  no  more  part  in  the 
affair.48 

After  Adams  was  elected  he  did  not  follow  Monroe's 

*«  Annals,  10  Cong.  1,  789-792;  Blount's  motion  was  lost,  24-87. 
*t  Ibid.,  11  Cong.  1,  58;  13  Cong.  1,  157,  ways  and  means  only. 
48  J.  Q.  Adams,  Memoirs,  V,  428,  431-432,  434-439. 


254         DEVELOPMENT  OF  LAWMAKING 

example  of  non-interference  in  contests  over  the  speaker- 
ship.  In  the  spring  of  1825,  Webster  assured  the  new 
president  not  only  that  he  would  not  run  against  Taylor, 
but  that  he  would  give  him  his  active  support.  Adams 
took  pains  to  have  Webster  reminded  of  this  promise 
when  Congress  convened.  Before  the  House  selected  its 
presiding  officer,  Adams  and  Taylor  talked  over  the 
composition  of  the  committees  in  the  event  of  the  latter 's 
election.  The  president  and  his  candidate  concluded  that 
although  they  could  not  displace  those  who  had  been 
chairmen  in  the  last  Congress,  they  might  very  well 
' '  arrange  the  members  so  that  justice  may  be  done  as  far 
as  practicable  to  the  administration."49 

By  1825,  as  the  result  of  fairly  steady  development, 
certain  institutions,  the  caucus,  the  standing  committee 
system,  and  the  speakership,  had  become  firmly  estab- 
lished in  the  House  of  Representatives.  These  can  be 
dissected  out  from  the  main  body,  so  to  speak,  and 
described  accurately  enough,  each  by  itself.  Such 
analysis  is  necessary,  but  it  does  not  go  far  enough.  The 
really  significant  thing,  in  addition  to  finding  out  the 
true  nature  of  these  institutions,  is  to  see  how  they  were 
related  to  each  other,  and  how  each  contributed  to  the 
process  of  legislation.  Then,  because  the  president  and 
his  cabinet  played  a  more  or  less  important  part  in 
Congressional  affairs,  their  connection  with  legislative 
institutions  must  also  be  taken  into  account.  Statutes 
are  the  finished  product  of  the  combined  activities  of 
all  these  separate  factors.  Unfortunately  for  purposes 
of  exposition,  the  relative  influence  of  the  several  forces 
varied  so  greatly  from  time  to  time  that  snapshots  of 
them  all  at  work  in  different  years  would  present  very 
dissimilar  results.  President,  cabinet,  Congressional 

4»  J.  Q.  Adams,  Memoirs,  VII,  68-70;  Taylor  was  chosen  on  the  second 
ballot. 


COMMITTEES,  CABINET,  AND  PAETY     255 

leaders  of  the  party  organization,  or  the  Speaker,  might 
and  did  have  the  whip  hand  at  different  times.  It  is 
particularly  difficult  to  describe  accurately  the  relation- 
ship from  1811  to  1825,  the  very  years  when  the  standing 
committee  system  and  the  powerful  speakership  were 
developing,  because  it  was  a  time  of  party  disintegration. 
The  balance  of  power  was  generally  in  the  House,  but 
members  of  the  cabinet  enjoyed  no  insignificant  influence 
in  legislative  affairs,  while  Clay,  one  of  the  greatest 
Speakers,  was  at  first,  in  1818,  decisively  beaten  on  his 
favorite  South  American  policy.50 

The  development  of  the  speakership  and  the  committee  t 
system  was  contemporaneous  with  the  throwing  off  of 
that  comprehensive  executive  domination  which  had 
characterized  the  Jeffersonian  epoch.  But  the  opera- 
tion of  these  institutions  in  the  House  did  nothing  to 
strengthen  and  make  permanent  those  habits  of  greater 
legislative  freedom  which  were  in  evidence  up  to  1829. 
That  the  standing  committee  system  did  not  make  the 
House  independent  of  an  active  executive  can  be  seen 
from  a  glance  at  legislative  history  under  various  presi- 
dents, from  Andrew  Jackson  to  Woodrow  Wilson.  As 
it  is,  and  as  it  has  been  for  a  hundred  years,  the 
organization  of  the  House  permits  the  application  of 
powerful  executive  pressure,  and  in  fact  the  wheels 
of  the  government  have  never  run  more  smoothly  L 
than  when  the  president  has  been  in  a  position  to 
drive  Congress.  When  party  lines  are  tightly  drawn, 
and  when  executive  and  legislature  are  politically 
friendly,  the  committee  system  works  well,  because 
under  such  conditions  there  is  cooperation  and  respon- 
sible leadership.  At  other  times  the  division  of  the 
House  into  fifty  or  more  committees  tends  to  prevent 
the  enactment  of  any  carefully  prepared  legislative 

BO  Annals,  15  Cong.  1,  1646;  Clay's  motion  was  lost,  pp.  45-115. 


256         DEVELOPMENT  OF  LAWMAKING 

program.  The  system  is  essentially  a  practical,  not  an 
ideal,  solution  of  governmental  problems,  for  which  the 
Constitution  must  be  held  responsible.  Before  it  can  be 
changed  very  much  the  organic  law  must  provide  for  a 
more  definite  connection  between  executive  and  legis- 
lature, and  in  addition  must  take  into  account  the 
important  position  of  the  political  party. 


BIBLIOGEAPHICAL  NOTE 

The  sources  upon  which  this  work  is  based  are,  for 
the  most  part,  of  three  different  kinds :  legislative  jour- 
nals, correspondence,  and  newspapers.  For  the  federal 
House  of  Representatives,  the  reports  of  debates,  gen- 
erally cited  as  the  Annals  of  Congress,  have  been  used 
extensively.  The  footnotes  are  numerous  enough  to  show 
what  material  has  yielded  the  most  information. 

Those  portions  of  the  study  which  deal  with  the 
regular  standing  committees  are  based  primarily  on  the 
official  minutes  of  the  various  legislative  bodies,  and 
on  the  Annals.  These  records  show  what  new  standing 
committees  were  created  at  various  times,  what  kind  of 
work  was  assigned  to  them,  and  what  gradual  changes 
occurred  in  the  relations  between  committee  and  assem- 
bly. Beyond  that  point  these  sources  do  not  go,  and  it  is 
almost  impossible  to  supplement  them  with  evidence 
gleaned  elsewhere,  because  newspapers  and  collections 
of  correspondence  are  generally  silent  on  the  subject  of 
standing  committees.  These  records  are  with  some  few 
exceptions  available  in  printed  form. 

With  reference  to  those  informal  committees,  the 
agents  of  the  political  party,  the  official  records  contain 
nothing  at  all.  The  Journals  would  never  lead  one  even 
to  suspect  the  existence  of  such  institutions  as  the 
"  Junto "  or  the  caucus,  and  the  Annals  of  Congress  are 
almost  as  silent.  For  information  about  this  kind  of 
legislative  machinery,  which  in  some  ways  is  far  more 
important  than  the  ordinary  committees,  recourse  must 
be  had  to  correspondence,  diaries,  and  the  newspapers. 
By  the  proper  synthesis  of  these  various  kinds  of 


258         DEVELOPMENT  OF  LAWMAKING 

material  a  fairly  complete  account  of  legislative  growth 
can  be  obtained. 

Secondary  works  are  useful  for  their  discussion  of  the 
political  situations  which  have  at  various  times  exerted 
an  influence  on  legislative  organization,  but  beyond  this 
very  important  service  of  supplying  a  background  they 
are  not  very  helpful.  They  contain  only  a  little  informa- 
tion regarding  the  party  organization  in  the  legislature, 
and  none  at  all  regarding  the  development  of  the 
committee  systems. 


APPENDIX 


LISTS  OF  STANDING  COMMITTEES 


1770. 

New  Hampshire. 
None. 

Massachusetts. 

(1)   On    Petitions    regard- 
ing the  Sale  of  Land. 


Connecticut. 
None. 

Rhode  Island. 
None. 

New  York. 

(1)  Privileges  and  Elec- 
tions. Grand  Committees 
on:  (1)  Grievances.  (2) 
Courts  of  Justice.  (3)  Trade. 

New  Jersey. 
Grievances. 


1789. 

New  Hampshire. 
None. 

Massachusetts. 

(1)  Finance.  (2)  En- 
couragement of  Arts,  Agri- 
culture, and  Manufactures. 
(3)  Incorporation  of  Towns, 
and  Town  Affairs.  (4)  Ac- 
counts. (5)  New  Trials. 

(6)  Abatement     of      Taxes. 

(7)  Petitions  regarding  the 
Sale  of  Real  Estate.   (8)  Nat- 
uralization of  Aliens. 

Connecticut. 
None. 

Rhode  Island. 
None. 

New  York. 

(1)  Ways  and  Means. 
(2)  Grievances.  (3)  Courts 
of  Justice.  (4)  Privileges 
and  Elections. 

New  Jersey. 
Accounts. 


260 


DEVELOPMENT  OF  LAWMAKING 


1770. 

Pennsylvania. 
Grievances. 

Maryland. 

(1)  Grievances  and  Courts 
of  Justice.  (2)  Accounts. 

(3)  Privileges  and  Elections. 

Virginia. 

(1)  Eeligion.  (2)  Privi- 
leges and  Elections.  (3) 
Propositions  and  Grievances. 

(4)  Courts  of  Justice.     (5) 
Claims.     (6)  Trade. 

North  Carolina. 

(1)  Accounts.  (2)  Claims. 
(3)  Propositions  and  Griev- 
ances. (4)  Privileges  and 
Elections. 

South  Carolina. 

(1)  Grievances.  (2)  Privi- 
leges and  Elections. 


1789. 
Pennsylvania. 

(1)  "Ways  and  Means. 
(2)  Claims.  (3)  Accounts. 

Maryland. 

(1)  Grievances  and  Courts 
of  Justice.  (2)  Privileges 
and  Elections.  (3)  Claims. 
(4)  Trade  and  Manufactures. 


(1)  Religion.  (2)  Privi- 
leges and  Elections.  (3) 
Propositions  and  Grievances. 

(4)  Courts  of  Justice.     (5) 
Claims.     (6)  Commerce. 

North  Carolina. 

(1)  Public  Bills.  (2)  Fi- 
nance. (3)  Privileges  and 
Elections.  (4)  Propositions 
and  Grievances.  (5)  Claims. 
(6)  Indian  Affairs. 

South  Carolina. 

(1)  Grievances.  (2)  Privi- 
leges and  Elections.  (3)  Re- 
ligion. (4)  Ways  and  Means. 

(5)  Accounts. 

1791. 

(1)  Privileges  and  Elec- 
tions. (2)  Religion.  (3) 
Ways  and  Means.  (4)  Ac- 
counts. (5)  Courts  of  Jus- 
tice. (6)  Public  Roads, 
Bridges,  Causeways,  and 
Ferries. 


APPENDIX  261 

1770.  1791. 

Georgia.  Georgia. 

(1)  Grievances.    (2)  Privi-  (1)    Privileges    and   Elec- 

leges  and  Elections.  tions.      (2)    Accounts.      (3) 

Petitions.  (Three  commit- 
tees, referred  to  as  Commit- 
tee on  Petitions  No.  1,  2,  and 
3,  respectively.) 


INDEX 


Adams,  Henry,  180,  186. 

Adams,  John,  30,  156,  159,  215. 

Adams,  John  Quincy,  175,  241,  242, 
243,  251,  253,  254. 

Adams,  Samuel,  25,  26,  27,  29,  30, 
31,  33,  35. 

Alien  and  Sedition  Acts,  162. 

Ames,  Fisher,  123,  124,  136,  137, 
146,  147,  158,  161,  238. 

Anti-Federalists,  see  Republicans. 

Assembly,  of  New  York,  committees, 
7,  8,  17;  influence  of  Parliament, 
9;  political  parties,  50,  52;  law- 
yers in,  52-53. 

Assumption  of  State  Debts,  24,  142, 
143. 

Appropriations,  in  Massachusetts, 
72;  in  New  York,  96. 

Auditing  Committees,  216. 

Aurora,  the,  152. 

Baldwin,  Abraham,  229,  233. 

Baptists,  12. 

Barbour,  Philip  P.,  218. 

Bassett,  Burwell,  195. 

Bayard,  James  A.,  185,  187. 

Bennett,  James,  230. 

Benson,  Egbert,  132. 

Bernard,  Sir  Francis,  25,  27,  29,  33, 
34,  39,  40. 

Bills,  in  colonial  legislature,  16,  21, 
77;  in  Congress,  222,  226. 

Bland,  Theodoric,  143. 

Bonus  Bill,  206. 

Boston,  Caucus  Club,  30 ;  town  meet- 
ing, 30,  31,  33 ;  British  troops,  34. 

Boudinot,  Elias,  131. 

Bowdoin,  James,  29. 

Bowers,  Jerathmeal,  25,  33. 


Budget,  colonial,  69-70. 
Burgess,  Prof .  John  W.,  cited,  234. 
Burr,  Aaron,  185. 
Butler,  Andrew  P.,  137. 

Cabinet,  in  England,  compared  with 
" Junto,"  59-60;  growth  of,  116- 
117. 

Cabinet,  tendency  toward,  in  colo- 
nies, 59,  84-90. 

Cabinet,  in  United  States,  Federal- 
ist idea  of,  145;  relations  with 
Congress,  146;  members  desire  to 
attend  House,  149;  under  Jeffer- 
son, 179,  208 ;  under  Madison,  198, 
208;  relations  with  standing  com- 
mittees, 237;  influence  on  legis- 
lation, 244. 

Calhoun,  John  C.,  199,  222,  239,  246. 

Calhoun's  bonus  bill,  206. 

Campbell,  George  W.,  183. 

Caucus,  in  Congress,  144;  work,  168, 
195,  204;  origin,  184;  in  election 
of  1800,  185;  nominates  speaker, 
187,  249,  250;  nominates  vice- 
president,  187;  description  of, 
188;  Quincy 's  account  of,  189; 
nominates  president,  200-201 ; 
friction  in,  202;  changes  in,  206; 
relation  to  executive  and  to  Con- 
gress, 237;  relation  to  standing 
committees,  248;  names  commit- 
tees, 251. 

Caucus  Club,  in  Boston,  30. 

Cheves,  Langdon,  250. 

Cincinnati,  Order  of  the,  143. 

Circular  Letter,  of  Massachusetts, 
33. 


264 


INDEX 


Clay,  Henry,  speaker,  199;  urges 
war  in  1812,  200;  influence  in 
House,  207;  House  leader,  208; 
.reorganizes  House,  210;  contri- 
bution to  standing  committee  sys- 
tem, 215,  216,  218,  219,  228,  251; 
improves  procedure,  219;  attack 
on  administration,  242;  South 
American  policy,  255. 

Clinton,  DeWitt,  170. 

Clinton,  George,  50,  51. 

Clymer,  George,  143. 

Golden,  Cadwallader,  51-52. 

Colonial  agent,  55. 

Colonial  government,  nature  of,  58; 
theory  and  practice,  61-62. 

Columbian  Centinel,  the,  187,  204, 
240,  249. 

Committees,  origin,  3;  in  House  of 
Commons,  5;  in  New  York,  7-9; 
in  Virginia,  10-17;  in  New  Eng- 
land, 19-21;  in  Massachusetts,  20; 
in  colonial  legislatures,  21;  in 
North  Carolina,  55-56;  in  New 
Hampshire,  65;  in  Massachusetts, 
66;  development  of,  66-67,  76-78; 
procedure,  104,  110;  appointment, 
in  House  of  Commons,  105-106; 
in  colonies,  106-108;  chairmen, 
109;  clerks,  109;  hearings,  111; 
meetings,  112,  113,  115;  rooms, 
112-113;  in  House  of  Represen- 
tatives, 129,  157,  160;  Gallatin 
attends,  183;  early  history,  208, 
211,  213;  growth,  210,  214;  ob- 
jections to,  211  et  seq.;  attitude 
of  Federalists,  213;  work,  217, 
220-222;  early  importance,  222; 
increasing  importance,  224,  227, 
228,  236,  247;  reports,  225  et 
seq.;  Clay's  influence,  228;  de- 
fects in  system,  229;  conflicting 
jurisdiction  of,  229  et  seq.;  rela- 
tion to  House,  executive,  and 
caucus,  237;  relation  to  president, 


244,  247;  relation  to  party  or- 
ganization, 248;  appointment  of, 
249;  party  control  of,  250,  251. 

Committee  on  Accounts,  67-68;  in 
Massachusetts,  68;  in  New  Jersey, 
68 ;  in  North  Carolina,  18 ;  in  Con- 
gress, 215. 

Committee  on  Agriculture,  216. 

Committee  on  Claims,  in  North  Caro- 
lina, 18;  in  Virginia,  11-12;  in 
Congress,  157,  214. 

Committee  on  Commerce  and  Manu- 
factures, 157,  212,  214,  220,  226, 
231. 

' '  Committee  of  Convention, ' '  in 
Boston,  34,  36. 

Committee  of  Correspondence,  18. 

Committee  on  Courts  of  Justice,  in 
New  York,  7;  in  Virginia,  11,  16. 

Committee  on  the  District  of  Co- 
lumbia, 215,  217-218. 

Committee  on  Elections,  129,  214, 
229. 

Committee  on  Foreign  Eelations, 
200,  215-216,  240,  241-242. 

Committee  on  Grievances,  in  New 
York,  7;  in  other  colonies,  17. 

Committee  on  Indian  Affairs,  215- 
216. 

Committee  on  the  Judiciary,  216, 
231. 

Committee  on  Legislation,  80-84;  in 
Georgia,  80;  in  Massachusetts,  84; 
in  New  Hampshire,  80,  81,  84;  in 
Pennsylvania,  80,  81,  84;  in  South 
Carolina,  80,  84. 

Committee  on  Manufactures,  216, 
218. 

Committee  on  Military  Affairs,  215- 
216. 

Committee  on  Naval  Affairs,  215. 

Committee  on  Pensions  and  Revolu- 
tionary Claims,  216. 

Committee  on  Post  Offices  and  Post 
Roads,  215. 


INDEX 


265 


Committee  on  Private  Land  Claims, 
216. 

Committee  on  Privileges  and  Elec- 
tions, 11,  15,  18. 

Committee  on  Propositions  and 
Grievances,  11,  14. 

Committee  on  Public  Bills,  in  North 
Carolina,  77,  80,  84-91;  compared 
with  Cabinet,  80,  89,  90,  118;  re- 
ports, 87-88;  work,  86-89,  102. 

Committee  on  Public  Claims,  11. 

Committee  on  Public  Expenditures, 
216. 

Committee  on  Public  Lands,  213, 
215. 

Committee  on  Religion,  11,  12. 

Committee  of  Revisal  and  Unfinished 
Business,  214. 

Committee  on  Roads  and  Canals,  231. 

Committee  on  Trade,  in  New  York, 
7;  in  Virginia,  11,  15;  general, 
76. 

Committee  of  War,  21. 

Committee  of  Ways  and  Means, 
origin,  70;  in  Congress,  129,  130, 
157,  160,  172,  211,  214,  226,  231, 
235,  238,  245;  in  Massachusetts, 
70  et  seq.;  in  North  Carolina,  75; 
in  Pennsylvania,  74;  in  South 
Carolina,  75. 

Committee  of  the  Whole,  in  House 
of  Commons,  92;  procedure,  94, 
96;  in  Congress,  127,  128,  153, 
219;  in  the  Carolinas,  94;  in 
Georgia,  93,  97;  in  Massachusetts, 
97;  in  New  England,  93;  in  New 
Hampshire,  92,  100;  in  New  York, 
93,  94,  96,  101;  in  North  Caro- 
lina, 94;  in  Pennsylvania,  94,  97; 
in  South  Carolina,  94 ;  in  Virginia, 
93,  95-97,  98-102. 

Congress,  procedure,  22;  early  his- 
tory, 120-121;  first  committees, 
129,  142;  under  Republicans,  154, 
156;  under  Federalists,  162-163; 


lack  of  leadership,  169;  party 
alignment,  175;  executive  in- 
fluence, 175;  Quincy's  description, 
189;  Jefferson's  influence,  191; 
rejects  executive  control,  195; 
confusion  in,  197;  twelfth  Con- 
gress, 199;  eleventh  Congress, 
210;  see  also  Caucus,  Committee, 
Hamilton,  Jefferson,  Madison. 

Congressional  government,  influence 
of  Virginia,  103. 

Connecticut,  committees  in,  19,  78. 

Conscription,  240. 

Constitutions,  61,  62,  63,  88-89,  120, 
121. 

Council,  in  Massachusetts,  28,  29. 

Crawford,  William  H.,  243. 

Gushing,  Thomas,  25,  26,  33,  35. 

Customs  Commissioners,  American 
Board  of,  in  Boston,  34. 

Dallas,  Alexander  G.,  170,  245. 
Debates,  in  Massachusetts,  opened  to 

public,  32. 

D'Ewes,  Simonds,  106. 
Dexter,  Samuel,  25,  33. 
Dinwiddie,  Robert,  42,  43. 
District  of  Columbia,  Committee  on, 

215,  217,  218. 
Dobbs,  Arthur,  44,  54-55. 
Duane,  William  J.,  174,  188. 

Election  of  1766,  in  Massachusetts, 

28. 

Election  of  1800,  178. 
Embargo,  the,  178,  195. 
Eppes,  John  W.,  195. 

Faneuil  Hall,  35. 

Federal    Convention,    90,    103,    120, 

123,  126. 
Federalist  Party,  131,  140,  144,  147, 

148,  150-151,  162,  163,  167,  173. 
Finance,   1,   51,  53,  69,   71,  74,  95, 

148-150,    153-156,    160-161,     182, 

212,  231. 


266 


INDEX 


Findlay,  William,  150. 

Fitzsimons,  Thomas,  129. 

Floor    leader,    176,    192;    see    also 

Giles,    Nicholas,    Nicholson,    Ran- 

dolph,  Rodney. 
Florida,  172,  175,  178,  242. 
Flying  machine,  230. 
Follett,  M.  P.,  Miss,  quoted,  249. 
Foster,  Sir  Augustus  J.,  201. 
Francis'  Hotel,  181. 

Gage,  Thomas,  36,  41. 

Gallatin,  Albert,  133,  156,  163,  181, 
182,  196-199,  214,  225,  238,  240. 

Gaston,  William,  245. 

Gerry,  Elbridge,  129. 

Georgia,  legislature,  45-46;  com- 
mittees, 78,  107;  committee  of  the 
whole,  97. 

Giles,  William  B.,  152,  158,  167-169, 
176. 

Goodhue,  Benjamin,  139. 

Goodrich,  Chauncey,  159-161. 

Governor,  colonial,  58-59. 

Grand  committees,  4,  7-8. 

Gray,  Thomas,  26. 

Grosvenor,  Thomas  P.,  239,  244,  246. 

Grundy,  Felix,  200. 

Hamilton,  Alexander,  24,   122,  130, 

133,   134,   140-142,   145,  148,   152, 

154,  176,  211. 

Hancock,  John,  25,  33,  34,  35. 
Hanson,  Alexander,  202. 
Hardin,  Benjamin,  227,  247. 
Hawkins,  Benjamin,  109. 
Hawley,  Joseph,  25,  33. 
Henry,  Patrick,  102,  137. 
Holmes,  Isaac  E.,  242. 
Hooper,  Samuel,  109. 
House  of  Burgesses,  committees,  3, 

5;    compared   with  the  House   of 

Commons,     10;     attendance,     13; 

committees,  13;  procedure,  16-17; 

relations    with    the    governor,    42- 

45;  committees,  45. 


House  of  Commons,  compared  with 
colonial  legislature,  1;  with  House 
of  Eepresentatives,  3 ;  committees, 
3-5;  committee  appointment,  105- 
106;  committee  meetings,  115. 

House  of  Delegates,  102. 

House  of  Representatives,  in  Massa- 
chusetts; influence  of  House  of 
Commons,  6;  compared  with 
House  of  Burgesses,  19;  political 
parties  in,  25,  31;  importance  of 
Boston  in,  31;  debates  opened  to 
public,  32;  impeachment  in,  37- 
39;  politics  in,  40;  relation  with 
English  government,  41. 

House  of  Representatives,  federal; 
compared  with  House  of  Commons, 
3,  116;  first  meeting,  122;  or- 
ganization, 122;  personnel,  122; 
description  of,  125,  139;  pro- 
cedure, 126;  committee  of  the 
whole,  127;  Republican  theories, 
158;  increase  in  power,  196; 
place  in  government,  200 ;  manage- 
ment of,  203;  Clay's  influence  in, 
207;  organization,  248;  escapes 
from  executive  control,  255. 

Huger,  Daniel,  143. 

Humphreys,  David,  143. 

Hutchinson,  Thomas,  28,  29,  32,  37, 
40,  41. 

Indian  Affairs,   committee  on,   215, 

216. 

Ingersoll,  Charles,  245. 
Instructions  to  Representatives,  30, 

31. 

Jackson,  James,  141,  143. 

Jackson,  John  G.,  195. 

Jackson,  Andrew,  255. 

Jacobins,  187. 

Jameson,    J.    Franklin,    History    of 

Standing  Committees,  cited,  3. 
Jay  Treaty,  158,  186. 
Jefferson,    Thomas,    135,    140,    144, 


INDEX 


267 


162,  165,  166,  169,  173-180,  188, 
191,  192,  194. 

Jeffersonian  System,  205. 

Johnson,  Kichard  M.,  228. 

il  Junto, "  the,  in  colonial  legisla- 
tures, 24;  in  Massachusetts,  25- 
28,  33-35,  37,  39,  42,  47-48;  in 
Virginia,  44;  power  of,  49;  in 
New  York,  50-53;  in  North  Caro- 
lina, 53-56;  conditions  responsible 
for,  56  et  seq.;  compared  with 
Cabinet,  59;  development  of,  59; 
attitude  toward,  60;  effect  on 
colonial  government,  62;  not 
recognized  in  constitutions,  62 ; 
effect  of  Eevolution  on,  79;  de- 
cline, 79-80;  compared  with  Cabi- 
net, 80,  83,  90,  117-118;  see  also 
Party  Organization. 

King,  Rufus,  204,  250. 
Knox,  Henry,  135. 

Lawyers,  in  New  York  Assembly, 
52-53. 

Lee,  Joseph,  26. 

Legislature,  colonial,  growth  of,  1; 
structure,  2;  work,  2;  uniformity, 
6;  influences  upon,  6-7;  compared 
with  House  of  Commons,  9; 
growth,  9 ;  select  committees,  21 ; 
bills,  21-22;  relation  with  execu- 
tive, 49,  56-58;  leaders,  57-58. 

Legislature,  state,  size,  63;  condi- 
tions in,  63-64 ;  problems,  64. 

Liberty,  the,  34. 

Livermore,  Samuel,  129,  211. 

Louisiana,  Purchase,  170;  govern- 
ment, 177. 

Lowndes,  William,  199,  220,  226, 
243. 

Maclay,  Edward,  141,  142,  143. 
Macon,  Nathaniel,  177,  181,  232. 
Macon's  Bill  Number  1,  197. 
Madison,  James,  90,  123,  126,  132, 


134,  140,  144,  154,  180,  193-201, 
206,  207,  220. 

Marshall,  John,  166. 

Martin,  Josiah,  56. 

Maryland,  committees,  17,  76,  78, 
107,  109,  111;  speaker,  107. 

Mason,  George,  115,  169. 

Massachusetts,  committees,  19; 
speaker,  25,  106;  "  Junto, "  the, 
25-42;  instructions  to  representa- 
tives, 30-31;  Circular  Letter,  33, 
36;  Provincial  Congress,  36,  41; 
royal  salaries,  37;  Superior  Court, 
37-39;  politics,  39;  governor  and 
legislature,  39-41 ;  relations  with 
England,  41;  committees,  47-48, 
65-66,  68,  70-78,  80-81,  84,  97,  106, 
108;  see  also  House  of  Represen- 
tatives. 

Mercer,  John  F.,  149. 

Monroe,  James,  133,  155,  177,  239- 
240,  253. 

Muhlenberg,  Frederick  A.  C.,  123. 

National  Bank,  142,  197,  244. 

New  England,  6. 

New  Hampshire,  committees,  19,  65, 
78,  80-81,  84,  100,  106;  procedure, 
92-93. 

New  Jersey,  17,  68,  78,  106. 

Newton,  Thomas,  243. 

New  York,  committees,  6,  7;  Assem- 
bly, 50-51;  lawyers,  52-53;  pro- 
cedure, 77;  committee  of  the 
whole,  93,  94,  96,  101;  committee 
witnesses,  111. 

Nicholas,  Wilson  C.,  163,  173,  176, 
181,  182,  196,  225. 

Nicholson,  Joseph,  178,  181,  182, 
221. 

Non-Importation,  33. 

Non-Intercourse  Act,  195. 

North  Carolina,  committees,  17,  18, 
75,  77,  106,  108,  109;  politics,  53 
et  seq. ;  speaker,  54-55 ;  legislature, 
56;  Cabinet  government,  approach 


268 


INDEX 


toward,  80,  89,  90,  118;  Constitu- 
tion, 88-89;  committee  of  the 
whole,  94;  procedure,  102;  Pro- 
vincial Congress,  114. 

Oakley,  Thomas,  245. 
Oliver,  Andrew,  28,  29. 
Oliver,  Peter,  38. 
Otis,  Harrison  Gray,  104. 
Otis,  James,  25,  27,  29,  33,  35. 

Page,  John,  131,  153,  212. 

Paper  money,  69. 

Partridge,  Oliver,  25. 

Party  organization,  in  colonial  legis- 
latures, 3,  22-24,  39,  49,  57,  121; 
see  "Junto";  in  Congress,  135- 
137,  139-140,  143-144,  192,  248, 
250;  see  Caucus. 

Pennsylvania,  committees,  74,  77,  80, 
81,  84,  107,  111;  committee  of 
the  whole,  94,  97. 

Person,  Thomas,  109. 

Petitions,  14,  19,  64,  135,  153. 

Pickering,  Timothy,  175,  178,  179, 
191,  195-196.  \ 

Politics,  see  " Junto,"  and  Party 
Organization. 

President's  Message,  215,  223-224, 
230. 

President's  Speech,  230. 

Privileges,  in  House  of  Commons, 
4;  of  committee  witnesses,  112. 

Procedure,  influence  of  colonial  leg- 
islatures on  House  of  Representa- 
tives,  22;  in  House  of  Represen- 
tatives,  126,  219,  222-223. 

Provincial  Congress,  in  Massachu- 
setts, 36,  41;  in  North  Carolina, 
114. 

Quakers,  138. 

Qudncy,  Josiah,  189,  208. 

Eandolph,  Edmund,  108. 

Randolph,  John,  168,  169,  171,  172, 


176,  181,  182,  188,  192,  197-.198, 
224,  243,  251. 

Eandolph,  Peyton,  43. 
Reform  Bill,  of  1832,  5. 
Eepublican  Party,  137,  140,  147-176, 

181-183,  196,  201-206. 
Revenue  Bills,  130. 
Eevolution,  the,  60,  61,  79. 
Rhode  Island,  19,  21,  78. 
Eobinson,  John,  43,  45. 
Rodney,  Csesar  A.,  170,  176. 
Eutledge,  Edward,  187. 

Secession,  urged  by  Pickering,  191. 

Sedgwick,  Theodore,  139,  148,   187. 

Seven  Years'  War,  21. 

Sheaffe,  Edward,  25,  26,  33. 

Shirley,  William,  1. 

Smilie,  John,  221. 

Smith,  Robert,  196. 

Sons  of  Liberty,  28. 

Southard,  Samuel  L.,  244. 

Southern  Colonies,  6. 

South  Carolina,  75,  77,  78,  80,  84, 
94. 

Speaker,  in  House  of  Commons, 
106;  in  federal  House  of  Repre- 
sentatives, 105,  123,  126,  168,  176, 

177,  187,  189,  192,  207,  225,  243, 
249,  252,  253;  in  New  York,  51; 
in  North  Carolina,  54 ;  in  Virginia, 
108-109. 

Specific  Appropriations,  213. 

State  Department,  130,  134,  241. 

Stamp  Act,  27. 

Starkey,  John,  53. 

Steering  Committee,  82. 

Superior    Court,    in    Massachusetts, 

37-39. 
Swann,  Samuel,  54-55. 

Taggart,  Samuel,  200. 
Tariff,  127,  231,  234. 
Taylor,  John  W.,  253. 


INDEX 


269 


Townshend  Acts,  33. 

Tucker,  George,  131. 

Treasury  Department,  129,  130,  132- 
134,  143,  149,  151,  152,  156,  176, 
182,  183,  211,  235,  238,  239,  244- 
245. 

Varmim,  Joseph  B.,  177. 

Venable,  Abraham,  225. 

Vining,  John,  143. 

Virginia,  committees,  6,  11-15,  45, 
76,  78,  107-108,  109-111;  reli- 
gious difficulties,  12 ;  governor,  42- 
45;  procedure,  77;  committee  of 
the  whole,  93,  95,  98-101;  speaker, 
108-109. 


War  Department,  130,  134,  238-240, 

246. 

War  Hawks,  199. 
War  of  1812,  200. 
Washington    Federalist,    the,     168, 

178,  187. 

Washington,  George,  148. 
Wayne,  Anthony,  229. 
Webster,  Daniel,  201,  203,  239,  240, 

250,  254. 
Whig  Party,   in  Massachusetts,  26, 

29,  33,  36,  39. 
Wolcott,  Oliver,  161. 

X.  Y.  Z.  Affair,  184. 
Yazoo  Land  Claims,  172. 


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